T 
P5415: 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 


I 


LITTLE,  BROWN  &  GO'S 

LAW    ADYERTISEE 

112  VrASHIiraTOlT  strxist,  bostoit. 

JULY,    1855. 


JUDGE    CURTIS'S 


EDITION   OF   THE 


DECISIONS 

OF    THE 

SUPREME  COURT  OF  THE  UNITED  STATES. 


Now  in  Press,  and  will  shortly  be  Published,  the  Decisions  of  the 
Supreme  Court  of  the  United  States,  with  Notes  and  a  Digest,  by 
Hon.  Benjamin  R.  Curtis,  one  of  the  Associate  Justices  of  the 
Court.  Li  18  volumes,  octavo.  Com^orising  the  Cases  reported 
by  Dallas,  4  vols.;  Cranch,  9  vols.;  Wheaton,  12  vols.; 
Peters,  16  vols. ;  Howard,  16  vols. ;  in  all  57  volumes. 


EXTRACT    FROM    THE    PREFACE. 

"  This  work  contains  the  decisions  of  the  Supreme  Court  of  the  United 
States.  The  opinions  of  the  Court  are,  in  all  cases,  given  as  they  have  been 
printed  by  the  authorized  reporters,  after  correcting  such  errors  of  the  press 
or  of  citation  as  a  careful  examination  of  the  text  has  disclosed. 

"I  have  endeavored  to  give,  in  the  head-notes,  the  substance  of  each  deci- 
sion. They  are  designed  to  show  the  points  decided  by  the  Court,  not  the 
dicta  or  reasonings  of  the  Judges. 

"  The  statements  of  the  cases  have  been  made  as  brief  as  possible.  For 
many  years,  it  has  been  the  habit  of  all  the  Judges  of  this  Court  to  set  forth 
in  their  opinions  the  facts  of  the  cases,  as  the  Court  viewed  them  in  making 
their  decision.  Such  a  statement,  -when  complete,  renders  any  other  super- 
fluous. When  not  found  complete,  I  have  not  attempted  to  restate  the  -whole 
case,  but  have  supplied,  in  the  report,  such  facts  or  documents  as  seemed  to 
me  to  be  wanting. 


"In  some  cases,  turning  upon  questions,  or  complicated  states  of  fact,  and 
not  involving  any  matter  of  law,  I  have  not  thought  it  necessary  to  encum- 
ber the  work  with  detailed  statements  of  evidence  which  no  one  would  find 
it  useful  to  recur  to.     These  instances,  however,  are  few. 

"  To  each  case  is  appended  a  note  referring  to  all  subsequent  decisions  in 
which  the  case  in  the  text  has  been  mentioned.  It  will  thus  be  easy  to  as- 
certain whether  a  decision  has  been  overruled,  doubted,  qualified,  explained, 
or  affirmed  ;  and  to  see  what  other  applications  have  been  made  of  the  same 
or  analogous  principles. 

"  The  paging  of  the  authorized  reporters  has  been  preserved  at  the  head 
of  each  case,  and  in  the  margin  of  each  page,  for  convenience  of  reference; 
the  reporters  being  designated  by  their  initials,  —  D.  for  Dallas,  C.  for 
Cranch,  W.  for  Wheaton,  P.  for  Peters,  PI.  for  Howard. 

"  It  is  expected  that  all  the  decisions  of  the  Court,  down  to  the  close 
of  the  December  Term,  1854,  will  be  embraced  in  eighteen  volumes.  To 
these  will  be  added  a  Digest  of  all  the  decisions." 


We  ask  attention  to  the  following  approval  by  the  Members  of  the  Su- 
preme Court  of  the  United  States:  — 

"  AVe  approve  the  plan  of  Mr.  Justice  Curtis's  '  Decisions  of  the  Supremo 
Court  of  the  United  States,'  and  believe  that  its  execution  by  him  will  be  of 
much  utility  to  the  legal  profession,  and  to  our  country." 

Roger  B.  Taney,  Chief  Justice.         Petek  V.  Daniel,  Associate  Justice. 
John  McLean,  Associate  Justice.        Samuel  Nelson,  xissociate  Justice. 
James  M.  Wayne,  Associate  Justice.  Robert  C.  Grier,  Associate  Justice. 
John  Catron,  Associate  Justice.         J.  A.  Campbell,  Associate  Justice. 

The  Old  Series  of  these  Reports  arc  in  57  volumes,  the  Catalogue  price  of 
which  is  $21 7.50.  This  Edition,  in  18  volumes,  will  be  offered  to  Subscribers 
at  the  low  price  of  S3  a  volume,  or  S54  the  set;  thus  bringing  them  within 
the  means  of  all.  The  volumes  will  be  delivered  as  fast  as  issued,  and  it  is 
intended  that  the  whole  work  shall  be  completed  within  six  months  from  the 
present  date. 

Vols.  I.  II.  III.  are  now  ready  for  delivery.  Those  wishing  to  subscribe 
will  please  send  in  their  names  to  the  Publishers  as  early  as  possible. 


REPUBLICATION    OF    THE 

ENGLISH   llEPORTS,   IN   FULL. 

I",Y   LITTLE,    BROWN   &   CO. 

Cunhiining  Iloports  of  all  the  Cases  before  the  House  of  Lords,  Privy 
Council,  the  Lord  Chancellor,  the  High  Court  of  Appeal  in  Chan- 
cery, all  the  Connnon-Law  Courts,  the  Court  of  Criminal  Appeal, 
and  the  Admiralty  and  Ecclesiastical  Courts. 

Tiir,  Piibiishctrs  of  this  Series  of  the  J'higlish  Law  and  Equity  Reports  in- 
vite; the  attention  of  the  Profession  to  the  following  statements,  showing  the 
advanL'igi-s  which  they  possess  over  all  others  :  — 

I.  They  an;  the  only  reprints  which  furnish  all  the  cases  decided  in  thcir 
n:  pcctivH  coiirts.     The  lliird  volume  of  Ellis  and  Bladcburn,  issued  from 


the  Philadelphia  press,  professes  to  give  the  decisions  of  the  Queen's  Bench 
inllilary,  Easter,  and  Trinity  Terms,  1854  ;  but  it  contains  only  eigiity- 
six  cases  out  of  one  iiundeed  and  twenty-one,  all  oftohicJi  tvill  he  found 
in  the  Laiv  and  Equity  Reports.  Many  of  the  cases  omitted  are  among  the 
most  important  decided  in  that  period.  The  Philadelphia  reprint  of  the  14th 
Common  Q&nch,  purports  to  contain  the  cases  from  Michaelmas  Term,  1853, 
to  Easter  Term,  1854,  inclusive;  but  is  gives  only  sixty  cases  out  of  eighty- 
three.  For  the  remaininfi  cases,  the  American  lawyer  nmst  loot  to  the  Law 
and  Equity  Reports.  The  Exchequer  Reports,  in  like  manner,  ■will  be  found 
incomplete.  And  this  incompleteness  of  the  Philadelphia  series  increases 
from  year  to  year ;  for  the  proportion  of  cases  omitted  is  much  greater  in 
the  recent  volumes  than  in  the  previous  ones. 

II.  The  character  of  the  Law  and  Equity  Reports  will  bear  the  most  rigid 
comparison  with  the  Philadelphia  series.  They  have  a  much  larger  circula- 
tion in  England,  and  are  as  freely  and  confidently  cited.  The  Law  Journal 
and  Jurist  are  cited  833  times  in  " Shelford  on  Railways;"  while  Meeson 
and  Welsley,  the  Queen's  Bench,  Common  Bench,  and  Exchequer  Reports 
are  collectively  cited  but  455  times.  In  "Hill  on  Trustees,"  the  Law  Joun- 
nal,  Jurist,  and  Law  and  Equity  Rejiorts  are  cited  846  times.  In  "  Saun- 
ders's Pleading  and  Evidence,"  the  Law  Journal  and  Jurist  arc  cited  1871 
times ;  while  the  Queen's  Bench,  Common  Bench,  and  Exchequer  Reports 
are  collectively  cited  but  1444  times.  And  an  examination  of  any  recent 
English  law-hoolcioill  shoto  the  same  high  appreciation  of  the  juLhlications  from 
tohich  the  Law  and  Equity  Reports  are  printed. 

III.  In  these  Reports,  the  decisions  are  generally  given  several  months 
in  advance  of  the  Philadelphia  reprints.  Even  in  the  volumes  tchich  are 
announced  as  in  advance  of  our  reports,  it  icill  he  found  that  a  larye  propor- 
tion of  the  cases  had  hecome  familiar  to  the  profession,  through  the  Laio  and 
Equity  Reports,  hefore  their  publication  at  Phikulelphia.  But  by  the  reduc- 
tion of  matter  which  the  omission  of  the  Chancery  cases  in  the  inferior  courts 
will  cause,  we  shall  be  able  hereafter  to  publish  the  common-law  cases  seve- 
ral months  earlier  than  heretofore.  The  28th  volume,  containing  the  cases 
in  Michaelmas  Term,  1854,  and  a  part  of  Hilary  Term,  1855,  will  be  pub- 
lished in  July  next,  embracing  the  cases  of  the  first  part  of  4th  Ellis  and 
Blackburn  ;  Part  Second  of  15  Common  Bench,  and  Part  Third  of  1 0th  Ex- 
chequer Reports,  and  being  nearly  a  year  in  advance  of  their  publication  in 
the  Philadelphia  series.  Thereafter,  toe  intend  to  j^uhlish  the  cases  of  each 
term  ivithin  four  months  from  the  rising  of  the  courts. 

IV.  In  addition  to  the  complete  reports  of  the  Common  Law  Courts,  this 
series  will  furnish  the  cases  before  the  House  of  Lords,  the  Privy  Council, 
the  Lord  Chancellor,  the  High  Court  of  Appeal  in  Chancery,  the  Admiralty, 
and  Ecclesiastical  Courts ;  making  the  amount  of  matter  more  than  double 
that  furnished  in  the  Philadelphia  series. 

V.  The  Law  and  Equity  Reports  are  sold  at  %2  per  volume,  which  will 
amount  to  $8  per  year  hereafter.  Considering  the  amount  of  matter  ivhich 
they  contain  their  cost  is  less  than  one  half  that  of  the  Philadelphia  series. 

These  Reports  are  now  regularly  digested  in  our  Annual  United  States 
Digest,  which  thus  embraces  an  Annual  Digest  of  the  whole  English  and 
American  Law.  We  shall,  upon  the  completion  of  Volume  XXX.,  publish 
a  separate  Digest  of  these  Reports  up  to  that  time. 

For  the  greater  convenience  of  the  profession,  we  shall  also  hereafter 
publish  a  table  of  all  the  cases  in  these  Reports,  with  a  reference  to  the 
volume  and  page  of  every  other  series  where  the  same  case  may  be  found. 

Vols.  1.  to  XXVII.,  now  ready  for  delivery,  at  3?2  per  volume,  to  perma- 
nent subscribers. 


^jj^gte* 


l^ukB  HUretitlij  ^^ulili^lieL 


J^arsons  on  eontuatts,  VoL  KK» 

TREATISE  on  the  Law  of  Contracts.  By  Hon.  Theophilus 
Parsons,  LL.D.,  Dane  Professor  of  Law  in  Harvard  University. 
Vol.  IL     8vo.     S5.50. 

The  topics  which  are  very  fully  considerecl  in  this  volume  are  Con- 
struction, the  Law  of  Place,  Damages,  Defences,  the  Statute  of  Limit- 
ations, the  Statute  of  Frauds,  Interest,  and  Usury,  and  the  Clause  in 
the  Constitution  of  the  United  States  respecting  the  obligation  of 
Contracts. 


am^eaton's  Knttrnational  llato, 

ELEMENTS  OF  INTERNATIONAL  LAW.  By  Hon.  Henry 
Wheaton,  LL.  D.  Sixth  Edition.  With  the  last  corrections 
of  the  Author.  Additional  Notes  and  Introductory  Remarks, 
containing  a  notice  of  Mr.  Wheaton's  Diplomatic  career,  and  of 
the  antecedents  of  his  life.  By  Wm.  Beach  Lawrence.  In 
one  volume.     8vo.     $6. 

"  This  work  of  Jlr.  Wheaton  now  holds  in  the  Cabhiets  >f  Europe  the  place 
wliich  Vattel  so  long  occupied.  Any  encomium  of  it,  from  any  source,  therefore, 
is  scarcely  necessary.  *****  To  the  citizen  who  wishes  to  become 
acquainted  with  tlie  principles  and  rules  on  which  the  intercourse  of  nations  is 
conducted;  to  the  merchant  who  has  sliips  or  goods  at  sea  in  time  of  war,  this 
work  is  a  mine  of  valuable  knowledge.  Like  all  the  publications  of  Messrs. 
Little,  Brown  &  Co.,  it  is  printed  in  the  best  manner,  and  appears  in  a  style  in 
every  way  suited  to  its  high  and  standard  merit." — Boston  Alias. 

"  The  Elements  of  International  Law,  by  AVheaton,  is  one  of  those  profound, 
pcholar-like,  national  works  which  arc  ornaments  to  the  literature  of  our  country. 
It  has  become  a  standard  work  in  tlie  cabinets  of  Christendom,  and  has  replaced 
even  the  elegant  work  of  Vattel.  *****  We  can  hardly  too  strongly 
commend  this  complete  edition  of  a  work  of  so  much  practical  importance.  Tlio 
country  may  ))e  f)roud  tliat  it  has  produced  the  best  exposition  of  the  rights  and 
duties  of  nations;  and  tliat,  unticrlying  it  .all,  aro  the  great  basis  principles  on 
which  its  institutions  rest."  —  lioskm  J'osl, 


moMintlj'u  iirportH,  Vol  XVm, 

REPORTS  OF  C!ASES  argued  and  determined  in  the  Supreme 
Court  of  the  United  Slates,  liy  Hon.  Benjamin  C.  Howard. 
Vol.  XVII.     8vo.     $5.50. 

"  Next  to  the  reports  of  the  Courts  of  liis  own  State,  those  of  tlie  TTnited  States 
Supreme  Court  are,  in  many  res|)ccts,  tlie  most  important  and  valuable  to  the 
practising  lawyer.  If  the  decisions  of  that  Court  do  not,  perhaps,  embrace  so  wide 
a  rango  of  questions,  yet  their  authority  in  our  State  courts  is  of  course  higher 


than  those  of  any  other  tribunals.    The  value  of  these  Reports  is  increased  by  the 
thorough  manner  in  which  they  arc  prepared."  —  N.  Y.  Times. 

"  These  official  reports  of  the  decisions  of  the  highest  Court  known  to  our  law, 
need  no  commendation  from  critic  or  reviewer.  The  bar  knows  their  value,  and 
the  world  has  learned  to  respect  the  learning,  the  integrity,  and  the  sagacity  of 
our  federal  judiciary."  —  N.  Y.  Commercial  Advertiser. 


REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Judicial  Court  of  Massachusetts.  By  Horace  Gkay,  Jr.,  Esq. 
Vol.  I.     8vo.     $5.00. 


2anitetr  States  .Session  aatos,  i854-o5. 

THE  STATUTES  AT  LARGE  and  Treaties  of  the  U.  S.  of 
America.  Commencing  with  the  Second  Session  of  the  Thirty- 
third  Congress,  1854-55  —  carefully  collated  with  the  originals 
at  Washington.  Published  by  authority  of  Congress.  Edited 
by  Geoiige  Minot,  Esq.     Royal  8vo.,  stitched,  $1.00. 


^nrjrll  o«  HimttatCons, 

TREATISE    ON   THE   LIMITATIONS  of  Actions  at  Law 

and  Suits  in  Equity  and  Admiralty,  with  an  Appendix  containing 

the  American  and  English  Statutes  of  Limitations,  and  embracing 

the  latest  Acts  on  the  subject.     By  Joseph  K.  Angell,  Esq. 

Third  Edition,  revised  and  greatly  enlarged.     By  John  Wilder 

May,  Esq.     1  vol.  8vo.     $5.00. 

Judge  Lipscomb,  in  giving  the  opinion  of  the  Supreme  Court  of  Texas,  in  1854, 
(11  Texas  Rep.  524,)  pronounced  this  work  the  "standard  work  on  Limitations." 

"  There  is  high  authority  for  saying  that  this  is  much  the  best  treatise  on  the 
very  important  subject  to  which  it  relates;  Lord  Brougham  having  pronounced 
that  opinion  of  the  first  edition,  'which  has  subsequently  been  much  enlarged  and 
improved.  All  the  learning  scattered  through  the  English  and  American  reports 
in  regard  to  the  constrviction  and  efiect  of  the  various  statutes  of  limitations  appears 
to  have  been  diligently  compiled  and  systematically  arranged.  The  labors  of  Mr. 
May  have  considerably  increased  the  value  of  the  work,  and  will  cause  this  edi- 
tion to  supersede  the  previous  ones."  —  N.  Y.  Times. 

"  In  acknowledging  the  receipt  of  this  valuable  work  from  its  distinguished 
author,  we  take  pleasure  in  calling  attention  to  the  present  edition.  The  treatise 
has  for  many  years  been  regarded  as  much  the  best  that  has  yet  appeared  on  the 
important  subject  to  which  it  relates.  That  opinion  was  expressed  by  leading 
members  of  the  legal  profession  in  England  and  in  this  country,  in  reference  to 
the  original  work," — Providence  Post. 


American  Mailtoag  erases. 

CASES  RELATING  TO  THE  LAW  OF  RAILAVAYS,  decided 
in  the  Supreme  Court  of  the  United  States,  and  in  the  Courts 
of  the  several  States,  with  Notes.  By  Chauncey  Smith  and 
Samuel  W.  Bates,  Esqrs.,  Counsellors  at  Law.  Vol.  I.  8vo. 
$4.50. 


6 
SSnfllisIj  Hailtoag  ®ases. 

CASES  RELATING  TO  RAILWAYS  AND  CANALS,  argued 
and  adjudged  in  the  Courts  of  Law  and  Equity,  from  1835  to 
1852.  Edited  by  Samuel  "W.  Bates  and  Chauncey  Smith, 
Esquires.     6  vols.     8vo.     $24.00. 


^tiHips  on  insurance. 

A  TREATISE  ON  THE  LAW  OF  INSURANCE.  By  Hon. 
WiLLARD  Phillips.  Fourth  Edition,  enlarged.  2  vols.  8vo. 
$10.00. 


srnijeU  on  iFitc  antr  mu  Knsutauce- 

A  TREATISE  on  the  Law  of  Fire  and  Life  Insurance.  With  an 
Appendix,  containing  Forms,  Tables,  &c.  By  Joseph  K.  An- 
GELL,  Esq.     1  vol.     8vo.     $5.00. 


AND    PREPARING    FOR    PUBLICATION. 


PARSONS   ON   COMMERCIAL,   L,AAV. 

THE  PRINCIPLES  OF  COMMERCIAL  LAW.  By  Hon. 
Theopiiilus  Paksons,  LL.  D.,  Dane  Professor  in  the  Law 
School  of  Harvard  University,  in  Cambridge.     2  vols.     8vo. 

'J'hc  j)nncipal  topics  of  the  first  volume  will  be  the  Origin  and  History 
of  the  Law  Merchant ;  the  Law  of  Partnership ;  of  Sales ;  of  Agency ; 
of  Bills  and  Notes;  and  of  Marine  Insiu-ance.  The  second  vohime  will 
contain  tlie  Law  of  [Shipping,  and  tlie  Law  and  Practice  of  Admiralty. 

FRAUDS. 

A  TREATISE  ON  THE  CONSTRUCTION  OF  THE  STA- 
TUTE OF  FRAUDS.  By  Causten  Browne,  Esq.,  of  the 
Sufiblk  liar.     In  1  vol.     8vo. 

This  })Ook  will  aim  to  present  a  full  view  of  tlie  law,  as  held  by  the 
Knglish  and  Anicrican  Courts,  upon  the  construction  of  the  Statute  29 
Car.  11,  Cap.  .'t,  with  the  moditications  under  which  it  lias  been  adopted 
in  tlic  diflcrt-nt  Slates  of  the.  Union.  Comprising  the  latest  rulings  in 
both  countries,  with  an  ai)j)(;nili.\,  giving  an  analytic  view  of  the  Eng- 
lish and  American  enactments,  with  their  successive  alterations. 


BISHOP    ON   CRIMINAL,    LAW. 

COMMENTARIES  ON  CRIMINAL  LAW.  By  Joel  Pren- 
tiss Bishop,  Esq.,  Author  of  "  Commentaries  on  the  Law  of  Mar- 
riage and  Divorce."  The  first  volume  to  be  a  complete  elementary 
Treatise  of  itself. 

This  work  is  intended  to  embrace  the  entire  field  of  English  and 
American  Criminal  Jurisprudence,  traversed  by  new  paths.  It  will  be 
both  elementary  and  practical ;  adapted  alike  to  the  use  of  the  student, 
the  magistrate,  and  the  practising  lawyer ;  and  on  important  points,  will 
contain  citations  of  all  the  English  and  American  cases. 

AMERICAN   RAILROAD  CASES. 

A  COMPLETE  COLLECTION  OF  THE  AMERICAN  CASES 

relating  to  the  Rights,  Duties,  and  Liabilities  of  Railroads,  with 
Notes  and  References  to  the  English  and  American  Railway, 
Canal,  and  Turnpike  Cases.  By  Ciiauncey  Smith  and  S.  W. 
Bates,  Esquires.     2  vols.     8vo.     Vol.  I.  now  ready. 

THE   LAW   OF   ADMIRALTY. 

LEADING  CASES  IN  ADMIRALTY  AND  SHIPPING,  with 
Notes  and  Commentaries.  By  a  Member  of  the  Suffolk  Bar. 
1  vol.     8vo. 

BLACKBURN  ON  THE  CONTRACT  OF  SALE. 

A  TREATISE  ON  THE  LAW  OF  SALES.  By  C.  Black- 
burn. With  Additions,  Notes,  and  References.  By  William 
P.  Wells,  Esq.     1  vol.     8vo. 

ARBITRATION. 

ARBITRATION,  at  Common  Law,  in  Equity,  and  under  the  Sta- 
tutes of  the  States  of  the  United  States.  By  Edward  G.  Lor- 
ING,  Esq.,  of  the  Suffolk  Bar. 

VENDORS  AND  PURCHASERS. 

THE  LAW  OF  VENDORS  AND  PURCHASERS  OF  REAL 
PROPERTY.     By  Francis  Hilliard,  Esq.     2  vols.     8vo. 

HUSBAND  AND  WIFE. 

THE  PRINCIPLE  AND  RULES  OF  LAW  regulating  the  Pro- 
perty of  Husband  and  Wife ;  and  Civil  Actions  therefor.  By 
Edward  G.  Loring,  Esq. 

PRECEDENTS  OF  INDICT31ENTS. 

PRECEDENTS  OF  INDICTMENTS,  Special  Pleas,  &c.,  adapted 
to  American  Practice,  with  Notes,  containing  the  Law  of  Crimi- 
nal Pleading.  By  Charles  R.  Train,  and  F.  F.  Heard,  Esqrs., 
of  the  Middlesex  Bar.     1vol.     8vo.     Nearly  ready. 


HIGHWAYS. 

A  TEEATISE  ON  THE  LAW  OF  HIGHWAYS,  Dedication 
of,  Ti-avellei's,  Travelling,  &;c.  By  Joseph  K.  Angell,  Esq. 
1  vol.     8vo. 

CRIMINAL  L,AW. 

A  COLLECTION  OF  LEADING  CASES  in  various  branches  of 
the  Criminal  Law,  with  Notes.  By  B.  F.  Butler  and  F.  F. 
Heard,  Esquires.     2  vols.     8vo. 

WALKER'S  INTRODUCTION. 

INTRODUCTION  TO  AMERICAN  LAW.  By  Hon.  Timothy 
Walker,  of  Cincinnati.      Third  edition,  revised.     1  vol.      8vo. 

REAL  PROPERTY. 

LEADING  CASES  on  the  Law  relating  to  Real  Property,  Con- 
veyancing, and  the  Construction  of  Wills.  By  Owen  D.  Tudor, 
Esq.,  of  the  Middle  Temple.  With  Notes,  by  a  Member  of  the 
Suffolk  Bar.     1  vol.      8vo. 

ENGLISH  REPORTS. 

LAW  AND  EQUITY  REPORTS.  The  Common  Law,  Equity, 
Criminal,  Admiralty,  and  Ecclesiastical  Reports  combined.  Edited 
by  Edmund  H.  Bennett  and  Chauncey  SariTH,  Esqrs.  Vol. 
XXVIIL 

CUSHING'S   REPORTS. 

REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Judicial  Court  of  Massachusetts.  By  Hon.  Luther  S.  Cushing. 
Vol.  IX.     8vo. 

UNITED   STATES   LAWS,   VOL.  X. 

THE  STATUTES  AT  LARGE,  and  Treaties  of  the  United 
States  of  America.  Published  by  authority  of  Congress.  Edited 
by  Geougk  jMinot,  Esq.     Vol.  X.  nearly  ready.     Royal  8vo. 

ANNUAL   DIGEST,    1864. 

UNITED  STATES  DIGEST  ;  Containing  a  Digest  of  the  De- 
cisions of  the  Courts  of  Coimiion  Law,  Equity,  and  Admiralty  in 
the  United  States  and  in  England,  for  the  year  1854.  By  John 
I'liKij's  I'uTNAM,  Esq.     Royal  8vo. 


TREATISE 


ON    THE 


LAW    OF   INSURANCE. 


By   WILLARD    PHILLIPS, 


IN    TWO    VOLUMES. 


FOURTH   EDITION. 


VOL.  I. 


BOSTON: 
LITTLE,    BROWN,    AND    COMPANY. 

M  DCCC  LIV. 


Entered  according  to  Act  of  Congress,  in  the  year  1854,  by 

WiLLARD    Phillips, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


/ 


R I  V  E  n  » I  n  K  ,    c  A  M  n  R  1 1)  G  K : 

yniNTKI)    IIY    JI.    O.    IIOUnllTd.N   AND    COMPANY; 


c 


PREFACE  TO   THE  THIRD  EDITION. 


At  the  time  of  beginning  to  prepare  this  edition, 
about  five  years  since,  little  more  was  proposed  than  to 
incorporate  into  it  the  judicial  decisions  subsequent  to 
the  former  one.  It  was  found,  however,  that  the  work 
would  thus  be  swollen  to  an  inconvenient  size.  It  ap- 
peared, also,  that  many  questions  in  this  branch  of  the 
law,  having  been  definitively  settled  during  the  thirty 
years  since  the  publication  of  the  first  edition,  and 
ceased  to  be  subjects  of  discussion  or  doubt,  might  be 
advantageously  compressed  within  much  narrower  limits. 
There  did  not  seem  to  be  occasion  for  changing  the  gene- 
ral divisions  of  the  subject,  which  had,  from  the  first, 
varied  materially  from  those  of  previous  treatises,  in  their 
titles,  and  their  number  and  order.  But  it  seemed  that 
some  improvement  might  be  made  in  the  statement  and 
arrangement  of  the  subdivisions,  and  the  particular  doc- 
trines and  illustrations,  which  would  give  more  facility  to 
students  in  their  elementary  reading,  and  to  professional 
gentlemen  and  underwriters  in  consulting  the  work.  It 
appeared,  also,  that  such  changes  would  bring  the  trea- 
tise into  a  form  more  convenient  for  use  as  a  text-book. 
Its  adaptation  to  such  use  has  been  constantly  kept  in 
view ;  and  in  respect  to  which  I  have  been  careful  to 


IV  PREFACE. 


avail  myself  of  the  suggestions  of  experienced  professors 
of  law.  Greater  attention  has  been  given  to  the  render- 
ing of  the  work  suitable  for  this  purpose,  from  the  consi- 
deration that  it  is  convenient  to  a  practising  lawyer  to 
have  studied,  as  a  learner,  the  same  elementary  book 
which  he  uses  in  practice.  In  reference  to  this  object, 
it  was  deemed  of  importance  to  present  the  doctrinal 
propositions  in  a  concise  form,  distinctly  and  conspicu- 
ously. In  cases  of  conflicting  or  questionable  decisions, 
and  of  disagreement  among  jurists  of  authority,  I  deemed 
it  not  improbable  that  some  persons,  who  should  use  the 
work,  might  desire  a  direct  expression  of  what  seemed  to 
the  author  the  better  doctrine,  with  the  reasons  for  the 
same ;  and  I  have  accordingly  proposed  to  myself,  in  all 
such  cases  of  any  considerable  importance,  to  venture 
upon  the  responsibility  of  expressing  directly  and  plainly 
what  I  deemed  to  be  the  law,  on  either  authority  or  prin- 
ciple, as  the  case  might  be. 

The  preparing  of  the  edition  in  accordance  with  these 
considerations  and  views,  has  required  many  parts  of  the 
work  to  be  recast. 

I  cheerfully  acknowledge  my  obligations  to  Judge 
Duer  and  Mr.  Arnould  for  the  help  afforded  me  by  their 
treatises  on  marine  insurance,  in  availing  myself  of  which, 
I  have  endeavored  not  to  make  an  undue  appropriation  of 
their  labors  in  alleviation  of  my  own. 

WILLAllD  PHILLIPS. 

Boston,  February  28,  1853. 


PREFACE  TO  THE  WORK  AS  ORIGINALLY  PUBLISHED. 

At  the  time  of  beginning  this  treatise,  it  was  intended  that  it  should 
include  the  whole  subject  of  insurance,  not  excepting  the  legal  pro- 
ceedings ;  but  it  was  found  to  be  impracticable  to  pursue  the  work 
upon  this  plan,  without  extending  it  to  more  than  one  volume.  Un- 
der these  circumstances,  it  was  thought  expedient  to  omit  the  legal 
proceedings,  as  being  the  part  of  the  subject  of  the  least  practical 
importance,  since  the  legal  proceedings  upon  a  policy  do  not  differ 
materially  from  those  upon  other  written  contracts. 

The  different  parts  of  the  subject  of  insurance  are  so  blended  together, 
and  implicated  with  each  other,  as  to  render  a  simple  and  methodical 
arrangement  very  difficult,  and,  in  the  opinion  of  some  persons,  even 
impossible.  The  perplexity  which  seems,  in  some  degree,  to  belong 
to  the  subject,  was  increased,  in  consequence  of  the  numerous  points 
and  decisions,  which  had  not  been  embodied  in  any  elementary  work. 
If  it  shall  be  found  that  the  difficulties  arising  from  these  causes  have 
not  been  wholly  overcome,  and  that  some  cases  and  points  are  not 
inserted  in  the  places  where  they  might  have  been  most  appropriately 
introduced,  I  hope  that  the  very  great  difficulty  of  disentangling,  and 
reducing  to  complete  order,  such  multifarious  and  complicated  mate- 
rials, will  be  regarded  as  some  apology  for  any  defect  of  this  sort. 

In  collecting  and  arranging  the  great  mass  of  materials,  which  have 
been  for  a  long  time  accumulating  in  this  science,  it  will  be  found,  no 
doubt,  that  some  points,  and  even  cases,  of  an  importance  sufficient  to 
entitle  them  to  a  place  in  the  work,  have  been  overlooked  ;  and  it  is 
not  improbable,  that,  in  sorne  instances,  cases  have  been  misunder- 
stood, and  opinions  inaccurately  represented.  I  have  endeavored  to 
prevent  such  omissions  and  mistakes  from  being  very  numerous. 

Although  I  have  not  hesitated  to  express  my  opinions  and  reasons 
without  reserve,  and  without,  at  the  same  time,  testifying  my  respect 
for  those  with  whom  I  have  differed,  not  thinking  that  the  occasion 
required  any  declaration  of  this  sort,  yet  I  have  not  thought  it  neces- 
sary, in  all  cases,  to  state  what  I  understood  to  be  the  law.  In  many 
instances,  the  diverse  opinions  of  judges,  and  of  writers,  are  given 
without  any  comment,  or  any  intimation  in  regard  to  the  preponder- 


VI  PREFACE. 

ance  of  authority  or  reasons  in  favor  of  either  side  of  a  question.  It 
would  doubtless  have  been  more  prudent,  on  my  part,  and  perhaps 
not  less  acceptable  to  my  readers,  had  I  more  frequently  pursued  this 
course. 

Where  different  opinions  are  thus  cited  in  regard  to  particular  doc- 
trines, and  so,  in  many  cases,  where  opinions  are  cited  without  any 
comment,  or  reference  to  opposite  opinions,  it  is  left  wholly  to  the 
judgment  of  the  reader,  to  adopt  or  reject  the  doctrine  in  dispute,  or 
the  opinion  stated,  as  he  may  be  determined  by  the  reasons  or  author- 
ity. I  do  not  wish  to  have  the  mere  circumstance  of  stating  a  doc- 
trine or  practice  considered  as  necessarily  implying  my  own  opinion 
respecting  it.  In  many  cases  the  reasons  stated  by  the  judges  or  writ- 
ers quoted,  and  the  comparative  authority  on  the  different  sides  of  a 
question,  leave  the  mind  free  from  any  doubt,  in  judging  of  what  is 
the  law.  Some  parts  of  the  subject  of  insurance  have  not,  as  yet, 
been  pursued  beyond  the  mere  rudiments,  and  still  rest  upon  broken 
hints,  and  general  and  hasty  suggestions  ;  in  such  cases,  to  arrive  at 
any  satisfactory  conclusions  would  require  elaborate  investigation,  and 
a  longer  argument  and  more  discursive  speculation,  than  can  conven- 
iently find  a  place  in  an  elementary  work. 

In  considering  a  proposition  to  be  law,  or  not  to  be  so,  the  mind  is 
necessarily  determined  by  the  reasons  and  the  authority,  in  its  favor, 
or  against  it.  If  the  inquiry  relates  to  a  disputed  point  of  which  a 
particular  court  has  jurisdiction,  the  question  is,  not  merely  what  rea- 
sons or  weight  of  authority  there  may  be  in  favor  of  either  side,  but, 
also,  what  would  probably  be  the  decision  of  that  particular  tribunal. 
In  such  a  case,  and  for  the  purpose  of  the  inquiry,  the  authority  of 
that  tribunal  outweighs  all  opposite  authority  and  reasons. 

When  the  inquiry  does  not  relate  to  the  probable  decision  of  any 
one  tribunal,  different  persons  must  necessarily  adopt  different  modes 
of  determining  what  is  law.  If  a  person  supposes  himself  not  to  be 
skilful  and  well  informed,  in  regard  to  the  subject  under  consideration, 
he  can  only  ado))t  the  opinion  of  the  judge  or  writer  whose  j(Klgment 
he  thinks  it  is  the  most  safe  to  follow.  He  must  decide  upon  authority 
merely,  and  be  im[)liciily  guided  by  the  opinions  of  those  men  whom 
he  supposes  to  have  had  the  best  means,  and  to  have  been  the  most 
capable  of  judging,  and  to  have  formed  their  opinions  the  most  delibe- 
rately, and  after  the  most  thorough  investigation.  In  proportion  as  a 
person  considers  himself  skilful  and  coinpcteut  to  judge,  he  is  the  less 
determined  by  mere  authority.     I'ut  very  few  |)ersons  consider  them- 


PREFACE.  vn 

selves  to  be  so  perfectly  masters  of  any  branch  of  legal  science,  as  to 
throw  off  all  restraint  of  authority ;  and  those  who  are,  with  good  rea- 
son, the  most  confident  of  their  skill  and  knowledge,  are  usually,  in 
forming  their  opinions,  influenced  more  or  less  by  authority,  according 
to  the  particular  subject  of  inquiry.  In  most  cases  it  is  necessary  to 
take  into  consideration  what  has  been  practised  and  decided,  since  the 
mere  fact  that  a  thing  has  been  decided  or  practised  in  a  certain  man- 
ner is,  in  itself,  a  reason,  of  greater  or  less  weight,  for  continuing  the 
same  practice,  or  adhering  to  the  established  doctrine. 

In  many  branches  of  the  law,  precedent,  as  such,  and  independently 
of  the  reasons  upon  which  it  was  formed,  is  entitled  to  great  respect, 
and  is  not  unfrequently  conclusive  of  the  law.  But  where  a  decision 
or  opinion  rests  upon  a  certain  principle,  the  applications  of  which,  in 
different  instances,  must  be  consistent,  and  also  conformable  to  other 
acknowledged  principles,  precedent  has  less  weight.  Concurrent  de- 
cisions, however  numerous  they  may  be,  cannot  establish  a  conclusion 
which  is  drawn  from  insufficient  premises  ;  or  cause  inconsistent  pro- 
positions to  be  law.  A  very  great  part  of  the  law  of  insurance  consists 
of  deductions  from  certain  principles,  which  constitute  a  science,  in 
regard  to  which  mere  precedent  cannot  have  very  great  influence, 
since  deductions  inaccurately  made  lead  to  contradictions  and  incon- 
sistencies, which  no  authority  can  vindicate.  In  some  branches  of  this 
subject,  precedent  is  of  authority  and  weight,  but  the  greater  part  of 
the  doctrines  comprehended  in  this  science  must  stand  exclusively 
upon  the  reasons  and  fixed  principles  from  which  they  are  inferred. 
The  inferences  which  may  be  clearly  drawn  from  those  principles,  are 
not  made  to  be  law,  and  cannot  cease  to  be  law,  in  consequence  of 
any  number  of  decisions,  by  whatever  authority  they  may  be  supported. 
Notwithstanding  a  diversity  of  opinions  and  judgments,  those  doctrines 
still  remain  the  unvarying  and  unalterable  law,  and  they  need  but  to 
be  presented  with  the  reasons  on  which  they  depend,  to  receive  the 
assent  of  a  mind  which  is  capable  of  perceiving  their  mutual  connec- 
tion and  dependency.  No  branch  of  law  can  more  properly  be  deno- 
minated a  science,  than  insurance  ;  and  since  this  contract  is  substan- 
tially the  same  in  different  countries,  and  continues  to  be  the  same 
now  that  it  was  formerly,  the  decisions  of  courts,  whether  ancient  or 
modern,  and  the  opinions  and  reasons  of  writers,  whether  American, 
English,  Italian,  or  French,  are  equally  applicable  to  it. 

Although  much  has  been  written,  and  a  very  considerable  number 
of  cases  decided,  upon  the  subject  of  losses,  still  this  branch  of  insur- 


Vlll  PREFACE. 

ance  is  not  very  satisfactorily  investigated,  and  settled  in  the  books. 
I  have  endeavored  to  acquaint  myself  more  fully  with  it,  by  communi- 
cation with  experienced  and  eminent  insurers.  In  this  respect  I  am 
under  great  obligations  to  several  gentlemen ;  in  particular  to  Christian 
Mayer,  Esq.,  President  of  the  Patapsco  Insurance  Company  of  Balti- 
more ;  and  especially  to  the  late  Hon.  George  Cabot,  President  of 
the  Boston  Marine  Insurance  Company,  who,  during  his  life,  took  a 
friendly  interest  in  my  labors,  and  was  always  ready,  in  the  most 
obliging  manner,  to  discuss  the  subjects  of  inquiry  which  I  proposed, 
and  gave  me,  as  far  as  he  could,  all  the  advantage  of  his  scientific 
views,  accurate  discrimination,  and  long  experience.  I  do  not,  how- 
ever, wish  that  any  particular  parts  of  the  work  should  be  understood 
to  have  the  sanction  of  his  authority,  nor  that  any  of  the  gentlemen 
above  alluded  to  should  be  considered  responsible  for  any  of  the  doc- 
trines laid  down,  or  any  of  the  statements  respecting  usage  and  prac- 
tice. 

August  7,  1823. 


EXTRACT   FROM   THE   PREFACE   TO   THE    SUPPLEMENTAL 
VOLUME,  PUBLISHED  1834.  ' 

Some  of  the  persons  who  have  occasion  to  use  this  work  would  pro- 
bably prefer  a  new  edition  of  the  whole,  but  it  was  supposed  that  to 
the  larger  number  of  those  who  already  have  the  first  volume  in  their 
hands,  the  work  in  the  form  now  given  to  it  would  be  more  acceptable* 
on  account  of  the  diminution  of  expense.  The  last  six  chapters,  com- 
prehending the  subject  of  legal  proceedings,  are  now  given  in  precisely 
the  same  form  in  which  they  would  have  appeared  in  a  new  edition  of 
the  whole  work. 

September  13,  1834. 


PREFACE  TO   SECOND  EDITION,  1840. 

W}ri:N  the  first  edition  of  this  work  was  published,  in  1823,  there 
were  but  few  American  treatises  on  law,  most  of  the  elementary  books 


PREFACE.  IX 

in  use  being  republications  of  English  works,  with  the  addition  of  the 
American  cases  in  notes.  A  very  useful  edition  of  Marshall  on  Insur- 
ance had  been  published  by  Mr.  Condy,  with  notes  of  American  cases, 
consisting  mostly  of  original  and  pretty  full  reports  of  decisions  of  the 
Circuit  Court  of  the  United  States  for  the  District  of  Pennsylvania, 
which  have  since  appeared  in  Washington's  Reports.  It  was,  how- 
ever, at  that  time  apparent,  upon  the  slightest  examination,  that  a 
republication  of  any  English  work  upon  that  plan  would  not  give  the 
space  and  prominence  to  American  jurisprudence  on  this  subject,  to 
which  it  had  become  entitled.  On  the  other  hand,  the  publication  of 
an  original  elementary  work  in  the  United  States,  on  any  branch  of 
law,  Wiis  an  undertaking  of  some  hazard,  and  it  was  accordingly  an 
object  to  bring  such  a  work  on  insurance  within  as  small  a  compass  as 
possible,  and  for  this  reason  the  whole  subject  of  the  legal  proceedings 
was  omitted.  It  was  thought  better  to  limit  the  size  of  the  work  in 
this  way,  rather  than,  by  curtailing  the  statement  of  the  cases,  inas- 
much as  the  part  of  the  treatise  relating  to  legal  proceedings  would  be 
consulted  only  by  the  legal  profession,  and  was  not  of  essential  import- 
ance to  them,  since  the  proceedings  on  policies  do  not  materially  differ 
from  those  on  other  contracts,  whereas  too  general  and  abridged  a 
statement  of  the  facts  or  the  grounds  of  decision,  in  many  parts  of  the 
subject,  would  have  much  impaired  the  utility  of  the  work,  both  to  the 
members  of  the  profession  and  to  merchants,  giving  the  former  the 
trouble  of  recurring  to  the  cited  cases  in  the  reports  upon  almost  every 
question,  and  supplying  the  latter  with  only  a  vague  outline  of  the  law, 
by  which  they  might  be  liable  to  be  misled.  Many  of  the  cases  aris- 
ing in  the  course  of  adjusting  claims  for  losses,  and  in  that  of  legal 
practice,  are  not  precisely  similar  to  any  one  adjudicated  upon,  and 
the  judgment  must,  therefore,  be  determined  by  their  closer  or  more 
remote  analogy,  and  not  by  their  precise  similarity  to  decided  cases. 
If  then  the  work  consulted  does  not  present,  within  itself,  the  means  of 
making  a  comparison,  it  will  only  serve  as  an  index  to  the  reports, 
which  the  merchant  does  not  possess,  and  an  examination  of  which  is 
a  matter  of  much  labor  to  the  counsellor.  Though  abridgment  is 
useful,  therefore,  as  long  as  all  the  material  facts  and  grounds  of  deci- 
sion are  retained,  it  cannot  be  carried  beyond  this  point  in  this  branch 
of  jurisprudence,  without  either  giving  the  work  a  very  rudimental 
character,  or  making  it  a  commentary.  This  is  accordingly  the  point 
at  which  I  have  aimed  to  stop,  though  doubtless  I  have  in  many  in- 
stances stopped  short  of  it,  and  in  others  passed  it. 


X  PREFACE. 

In  giving  the  grounds  of  decision,  I  have  usually  adopted  the  very 
language  of  the  judges,  though  not  the  whole  of  it,  for  this  would  have 
swelled  the  work  to  many  volumes,  but  as  much  as  appeared  to  be 
necessary  to  present  the  full  force  of  the  decisions.  In  the  reported 
opinions  a  large  space  is  occupied  by  citations  and  comments  upon 
previous  decisions.  Such  parts  I  have  usually  omitted,  since  there 
would  be  no  end  of  repeating  the  comments  upon  comments  from  the 
beginning  downward.  In  case  of  doubt,  however,  whether  any  fact 
was  material,  or  any  part  of  the  reported  opinion  should  be  recited,  I 
have  made  it  an  invariable  rule  to  insert  rather  than  to  omit. 

In  1834  an  additional  volume  was  published,  containing  the  cases 
reported  subsequently  to  the  date  of  the  former  one,  and  also  the  legal 
proceedings  upon  policies.  In  the  present  edition,  those  two  volumes, 
and  the  decisions  since  1834,  are  incorporated  together  into  a  uniform 
work,  upon  the  plan,  however,  and  according  to  the  arrangement  and 
division  of  subjects  of  the  former  publications,  which  I  have  not  seen 
cause  materially  to  alter.  The  following  are  the  principal  alterations 
in  these  respects.  In  the  first  chapter,  the  two  sections  in  the  former 
publications,  on  the  Construction  of  the  Policy  and  on  Usage,  have 
been  put  into  one.  The  chapter  on  Representation  and  Concealment 
has  been  divided  into  nineteen  sections,  instead  of  five,  as  before;  and 
that  on  Implied  Warranties,  into  five,  instead  of  three.  In  the  chap- 
ter on  Risks,  the  three  sections  in  the  former  volumes,  on  Remote  and 
Consequential  Losses,  the  Concurrence  of  Different  Perils,  and  a  Loss 
on  one  Subject  b}'  Damage  to  another,  have  been  thrown  together,  in 
one  section,  and  a  short  section  has  been  added  at  the  beginning  of  the 
chapter.  In  the  chapter  on  General  Average,  the  subject  of  Foreign 
Adjustments  has  been  put  into  a  separate  section.  In  the  chapter  on 
Particular  Average,  two  short  sections  are  added,  on  the  subjects  of 
Average  on  Profits,  and  under  Fire  Policies. 

These  volumes  will  show  some  changes  and  some  extension  and  new 
application  of  doctrines  in  this  branch  of  jurisprudence  during  the  last 
sixteen  years.  On  the  subject  of  the  implied  warranty  of  seaworthi- 
ness, the  former  severity  of  the  adjudications  has  been  in  some  degree 
mitigated,  and  where  it  can  be  distinctly  shown  that  a  loss  cannot  have 
been  at  all  ailected  by  a  failure  to  comply  with  this  warranty  in  some 
circumstance,  or  for  a  short  time,  the  courts,  particularly  those  of 
Massachusetts  and  South  Carolina,  are  less  disposed  than  judges  for- 
merly were,  to  hold  that  the  contract  is  thereby  terminated.  So  on 
the  subject  of  the  incro  statements  of  facts  in  the  policy,  without  any 


PREFACE.  XI 

specific  and  formal  stipulation  respecting  them,  which  have  been 
ranked  in  the  class  of  Express  Warranties,  there  is  an  apparent  ten- 
dency, particularly  in  the  jurisprudence  of  New  York,  to  let  in  the 
principles  applicable  to  a  representation,  and  to  take  into  consideration 
the  materiality  of  a  fact  so  stated  in  the  policy,  and  to  be  satisfied  with 
a  substantial,  instead  of  following  the  doctrine  of  Lord  Mansfield,  and 
requiring  a  literal,  compliance.  In  respect  to  general  average,  it  be- 
gins to  be  held,  that,  in  order  to  give  a  right  to  claim  contribution,  it  is 
sufficient  that  something  is  saved  from  the  impending  peril,  and  is  not 
necessary  that  the  peril  should  be  avoided  by  the  entire  interests  at 
risk.  This  question  has  been  elaborately  discussed  by  Mr.  Justice 
Story,  in  giving  the  opinion  of  the  Supreme  Court  of  the  United  States. 
Another  doctrine  in  relation  to  contribution,  of  great  importance,  has 
been  introduced  by  the  English  Court  of  King's  Bench,  namely,  that 
the  owners  of  the  ship  cannot  object  to  such  a  claim,  on  the  ground 
that  the  goods  jettisoned  were  carried  on  deck,  a  fact  of  which  they 
could  not  but  be  affected  with  notice.  The  doctrine  has  also  been 
adopted  by  Mr.  Justice  Story,  that  the  goods  of  the  government  are 
liable  to  contribute  with  those  of  other  shippers,  in  cases  where  such  a 
liability  of  the  goods  would  not  prejudice  the  public  service.  This 
was  merely  extending  the  doctrine  of  contribution  to  a  case  not  before 
solemnly  adjudicated  upon,  and  not  any  departure  from  any  previously 
established  doctrine.  The  question  of  the  liability  of  underwriters  to 
reimburse  a  contribution  made  under  the  laws  of  a  foreign  country  on 
account  of  damage  by  accidental  collision,  has  been  decided  against 
the  claim  by  the  court  of  King's  Bench  in  England,  and  in  favor  of  it 
by  Mr.  Justice  Story,  whose  decision  has  been  confirmed  by  the  Su- 
preme Court  of  the  United  States.  The  vexed  question  of  the  kind 
and  degree  of  necessity  which  will  justify  a  bottomry  or  sale  of  the 
ship  by  the  master,  has  been  very  learnedly  investigated  and  much 
elucidated  by  Mr.  Justice  Story.  These  are  among  the  more  striking 
passages  in  the  jurisprudence  on  insurance  in  the  period  in  question. 
One  subject,  of  great  importance  in  relation  to  belligerent  risks,  namely, 
the  effect  of  foreign  judgments,  and  the  degree  of  respect  to  which 
they  are  entitled  when  produced  in  evidence  collaterally  under  a  policy 
of  insurance,  still  continues  to  be  involved  in  perplexity  and  confusion. 

March,  1840. 


XU  MEMORANDUM,  ETC. 


MEMOEANDUM. 

The  more  considerable  additions,  retrenchments,  alterations,  and  new 
illustrations  and  references  in  the  present  edition,  will  be  found  by  com- 
paring the  table  of  cases  and  list  of  citations  of  treatises  and  authorities  with 
those  of  the  third  edition,  and  by  recurrence  to  the  following  subsections; 
namely:— No.  13,  78a,  79,  84,  91  note,  110,  281  note,  289,  293,  301,  313, 
370,  398,  413a,  427,  441,  523,  523a,  525,  555,  567,  568,  580,  586a,  587a, 
592,  638,  638a,  639,  642,  667,  728,  770,  771a,  865,  866,  866a,  868,  872a, 
874a,  880,  881,  884,  886,  888,  889,  950,  975,  983,  1045,  1046,  1087,  1095a, 
1095b,  1097,  1098,  1099,  1137,  1137a,  1161,  1168,  1191,  1210,  1249,  1265, 
1411a,  1416,  1424  a,  1439,  1462,  1475a,  1480a,  1482a,  1482b,  1484  a,  1484  b, 
1531,  1557,  1651,  1653,  1655,  1668,  1711,  1712,  1716,  1741a,  1754,  1755a, 
1758,  1777,  1795a,  1810,  1811,  1812,  1813,  1821,  1847a,  1847b,  1850,  1872, 
1876,  1877,  1932,  1939,  1940,  1949,  1950,  1953,  1956  note,  1957,  1958,  1960 
note,  1962,  1969,  1970,  1972,  1974,  2026,  2032,  2052,  2112,  2113,  2117,  2122, 
2124,  2173  note. 

Boston,  September  15,  1854. 


CORRECTIONS. 

Vol.  I.,  p.    61,  1.  24,  expunge  "to  himself." 

"      "  199,  "  12,  for  "whether,"  read  "where: 
"       "  374,  "  11,  for  "for,"  read  "from." 

Vol.  II.  "  235,  "  19,  for  "sale,"  read  "rule." 


CONTENTS.. 


CHAPTER  I. 


OF  THE  CONTRACT  OF  INSURANCE. 


Sec.  1.  Insurance    defined  and 

explained  1 

2.  The  Form  of  the  Con- 

tract 5 

3.  An  Agreement  for  In- 

surance 10 

4.  The   Execution   of  the 

Contract  23 

5.  The     Provisions     of    a 

Commercial  Policy  26 

6.  The     Provisions    of    a 

Fire  Policy  44 

7.  The     Provisions     of    a 

Life  Policy  46 


Sec.  8.  What  is  comprehended 
by  the  Pohcy  as  being 
a  Part  of  it  48 

9.  Kenewal    of   the    Con- 
tract 54 

10.  Assignment  of  the  Pol- 

icy 57 

11.  Alteration  and  Cancel- 

ling of  the  Policy  75 

12.  The  Judicial  Correction 

of  Mistakes  77 

13.  Leading    Principles    of 

Construction. — Usase     79 


CHAPTER  II. 


WHO     MAY     BE     INSURED. 

Sec.  1.  Capacity  to  Contract         101  I  Sec.  3.  National     Character. — 

2.  Alien  Enemy  101  I  Domicile  105 

CHAPTER   III. 

INSURABLE   INTEREST. 

Sec.  1.  What  Interest  is  sufE-  I  Sec.  2.  The  Legality  of  the  In- 

dent 114  I  terest  128 

VOL.  I.  b 


XIV 


CONTENTS. 


PACK 

Sec.  3.  Interest  of  a  Mortgager  162 

4.  Interest  of  a  Mortgagee  163 

5.  Interest  of  a  Lender  in 

Bottomry     and     Ke- 
spondentia 

6.  Interest  of  a  Borrower 

in  Bottomry  and  Re- 
spondentia 

7.  Interest  of  a  Consignee, 

Factor,  Agent,  or  Car- 
rier 
'6.  Interest  in  Profits 
9.  Interest  of  Captors  and 

Prize  Acents  180 


167 


171 


172 

178 


PAGE 

Sec.  10.  Interest   of  the  Char- 
terer of  a  Ship  182 

11.  Interest  in  Freight         183 

1 2.  Interest  in  Fishing  Voy- 

ages 194 

13.  Interest  in  Fire  Insur- 

ance 195 

14.  Interest  in  Lives  197 

15.  Interest  in  Double  In- 

surance 199 

16.  Interest     in     Reinsur- 

ance 207 


CHAPTER   IV. 

THE    PARTIES    TO    AN    INSURANCE. DESCRIPTION    OF    THE    ASSURED   209 

CHAPTER   V. 

DESCRIPTION    OF    THE    SUBJECT. 


Sec.  1.  Description  of  the  Sub- 
ject in  General.- —  Of 
difTercnt  Kinds  of  In- 
terest, as  Owner,  Mort- 
gagee, &c.  231 
2.  Cargo,    Coods,    Wares, 

Merchandise, Property  237 


Sec.  3.  Profits  254 

4.  Ship  255 

5.  Freight  260 

6.  Subject  of  Fire  Policies  265 

7.  Of  Fishing  Voyages  269 

8.  Of  Reinsurance  270 


CHAPTER   VI, 


THE    PREMIUM. 


At  Certain   Kate  amount  must  depend  on  Amount  at  Risk 


272 


CONTENTS. 


XV 


CHAPTER   VII, 


REPRESENTATION    AND    CONCEALBIENT. 


PAGE 

Sec.  1.  What  is  a  Representa- 
tion or  Concealment      284 

2.  To  what  Time  the  Doc- 

trine  of   Representa- 
tion refers  307 

3.  Revocation  of  the  Order  308 

4.  Representation  or  Con- 

cealment by  an  Agent  309 

5.  Construction  of  a  Repre- 

sentation 310 

6.  What    Facts    must    in 

general  be  Disclosed 
and  in  what  Manner  315 

7.  Species  of  Property,  and 

Nature  of  the  Interest  32G 

8.  Usages    of    the    Trade 

need  not  be  Disclosed  328 

9.  Evasion  of  Foreign  Com- 

mercial and  Municipal 
Regulations  330 

10.  Matters  of  Express  Sti- 

pulation in  the  Policy  331 

11.  Matters  of  Implied  War- 

ranty or  Stipulation      332 


PAGE 

Sec.  12.  What  Kinds  of  Intelli- 
gence must  be  Com- 
municated 337 

13.  Time  of  Sailing  or  being 

Spoken  342 

14.  National  Character  and 

Belligerent  Risk  348 

15.  Representation         and 

Concealment   in    In- 
surance against  Fire  353 

16.  Representation        and 

Concealment  in  Life 
Insurance  3G3 

17.  Presumption   from    the 

Rate  of  Premium        372 

18.  The  Withdrawing,  Su- 

perseding, or  Waiver 

of  a  Representation     372 

10.  Compliance  with  a  Re- 
presentation 376 

20.  Effect  of  a  Conceal- 
ment or  Misrepresen- 
tion  380 


CHAPTER   VOL 


IMPLIED    WARRANTIES,    CONDITIONS,    AND    STIPULATIONS. 


Sec.  1.  What  Warranties,  Con- 
ditions, and  Stipula- 
tions are  implied  386 

2.  Seaworthiness     of     the 

Ship  389 

3.  Legal  Conduct  418 


Sec.  4.  Belligerent  Risks 

5.  The  Abrogation  of  an 
Implied  Warranty, 
Condition,  or  Stipu- 
lation 


419 


424 


XVI 


CONTENTS. 


CHAPTER  IX, 


EXPRESS   WARRANTIES,    STIPULATIONS,   AND   CONDITIONS. 


PAGE 
Sec.  1.  What  constitutes  an  Ex- 
press Warranty  425 

2.  Construction      of,      and 

Compliance  with  an 
Express  Warranty       430 

3.  Warranty  of  the  Time 

of  Sailing  436 

4.  Warranty  of  Convoy       443 

5.  Warranty    of    Neutral 

Property,  its  Form, 
Import,  and  Construc- 
tion.—  Ownership         444 

6.  Origin  of  Property  war- 

ranted Neutral  449 

7.  Documents,  Proofs,  and 

Insignia  of  Neutral 
Property  450 


Sec.  8.  Warranty  of  Neutral 
Property  requires 
Neutral  Trade,  Em- 
ployment, and  Con- 
duct 456 
9.  Particular      Warranties 

and  Conditions  472 

10.  Warranties,  Conditions, 

and     Stipulations     in 
Fire  Policies  478 

11.  Warranties,  Conditions, 

and     Stipulations     in 
Life  Policies  500 

12.  Stipulation  for  Set-off       506 

13.  Waiver  of  Forfeiture  by 

Non-compliance    with 

an  Express  AVarranty  507 


CHAPTER  X. 


WHAT    RISKS    MAY    BE    INSURED    AGAINST 


509 


CHAPTER  XI. 

THE   VOYAGE.  —  DURATION    OF    THE    RISK. 

Sec.  1.  At  what  Time  or  Place  i  Sec.  2.  Termination  of  the  Risk  536 

the  Risk  begins  516  |  3.  Suspension  of  the  Risk  557 

CHAPTER  XII. 

DEVIATION    AND    CHANGE    OF    RISK. 


Six.  1.  Of  Deviation  and  Ciiange 
of  Risk  in  general. — 
Tlio  Effect  561 


Sec.  2.  The  Substitution  of  an 
entirely  other  Voy- 
age 567 


CONTENTS. 


xvn 


PAGE 

Skc.  3.  Change  of  the  Risk  in 
Port.  —  Time  and 
Manner  of  Loading 
and    Landing    Cargo   571 

4.  Varying     unnecessarily 

from  the  usual  Course  573 

5.  Intention  to  Deviate         574 

6.  Delay  after  the  Risk  has 

begun,  either  in  Port 

or  on  a  Passage  576 

7.  Usage  will  justify  Deflec- 

tions and  Delay  of  the 
Voyage  580 

8.  Liberty  to  turn  from  the 

direct  or  usual  Course, 
or  to  delay  or  to  vary 
from  the  usual  Risks      581 

9.  Turning  off  and  Delay 

for  Repairs  or  to  Refit  593 
10.  Turnin":    off    to     avoid 


598 


699 


PAGE 

Perils  insured  against, 
or  not  insured  against  594 
Sec.  11.  Delay  for  the  Purpose 
of  succoring  the  Dis-    . 
tressed,  or  to  save  the 
Property  of  others 

12.  Taking       Letters       of 

Marque.  —  Cruising. 
—  Convoying. 

13.  Departures     from    the 

Route,    Delays,    and 

Changes  of  the  Risk, 

not  imputable  to  the 

Assured 
Changes  of  the  Risk  in 

Fire  Policies 
Changes  of  the   Risks 

in  Life  Policies 
Waiver  of  a  Forfeiture 

incurred  by  Deviation  603 


14. 


15. 


16. 


601 


601 


603 


CHAPTER   XIII. 


RISKS    COVEKED, 


Sec.  1.  Of   the    Risks   covered 

generally  605 

2.  Acts  of  the  Assured  and 

his  Agents  608 

3.  Barratry.  620 

4.  The    Insurers    are    not 

liable     for     ordinary 
Perils  and  Losses         634 

5.  Damage     arising     from 

the    Qualities   of   the 
Subject  336 

6.  Events   which    enhance 

the  Risk  639 

7.  Loss  by  Fire  039 

8.  Perils  of  the  Seas,  Riv- 

ers, Lakes  646 


Sec.   9.  Piracy,  Robbery,  Theft  060 
iO.  Capture,   Arrests,    Re- 
straints, and    Deten- 
tions 663 

11.  Risks  from  prohibited 

and  contraband  Trade  677 

12.  Other  Perils.— General 

Clause  683 

1 3.  Loss  from  Fear  of  Pe- 

rils 686 

14.  Remote  and  Consequen- 

tial Losses.  —  Concur- 
rence of  different  Pe- 
rils. —  Loss  upon  one 
Subject  by  Damage 
to  another  686 


XVIU 


CONTENTS. 


Sec.  15.  What  Losses  are  -with- 
in the  Period  of  the 
Risk  703 


Sec.  16.  Risks  excepted 

17.  Risks  in  Bottomry  In- 
terest 


PAGE 

708 


ri9 


TABLE   OF   CASES. 


The  references  are  to  the  subsectious. 


Abbey,  The,  5  Chr.  Rob.  251, 
Abbott  V.  Broome,  1  Caines,  292,    . 

. V.  Sebor,  .3  Johns.  Cases,  39, 

Abel  V.  Potts,  3  Esp.  242,     . 
Abitbol  V.  Bristow,  6  Taunt.  464, 
Acey  V.  Fernie,  7  M.  &  W.  151,    . 
Adams  v.  Del.  Ins.  Co.,  3  Binn.  287,     . 

V.  Lindsell,  1  B.  &  A.  681, 

V.  Penn.  Ins.  Co.,  1  Rawle,  97, 

V.  Saunders,  4  C.  &  P.  25, 

V.  Warren  Ins.  Co.,  22  Pick.  163, 

Adelaide,  The,  2  Chr.  Rob.  Ill,  n.;  3  id.  281, 

Adonis,  The,  5  Chr.  Rob.  256, 

Adriana,  The,  1  Chr.  Rob.  313, 

^tna  F.  Ins.  Co.  v.  Tyler,  16  Wend.  385,       '. 

African  Company,  The,  v.  Bull,  1  Show.  132 ;  Gilb.  238 

Aguilar  v.  Rodgers,  7  T.  R.  421, 

Aiken  v.  Miss.  Mar.  &.  F.  Ins.  Co.,  4  Martin,  N.  S 

Airy  v.  Bland,  Park,  36  ;  Marsh.  294, 

Albretcht  v.  Sussman,  2  Ves.  &  Beame,  323, 

Alchorne  v.  Saville,  6  J.  B.  Moore,  199  n. 

Alciator  v.  Smith,  3  Camp.  245, 

Aldrich  v.  Eq.  Ins.  Co.,  1  Woodbury  &  'Mlnot,  272, 

Aldridge  v.  Bell,  1  Starkie,  498, 

V.  Great  Western  Railway,  3  Man.  &  Gr.  514, 

Alers  V.  Tobin,  Abbott  on  Shipp.,  5th  ed.  245, 
Alexander,  The,  1  Gallison,  582;  8  Cranch,  169, 

V.  Bait.  Ins.  Co.,  4  Cranch,  370, 

V.  Pratt,  Am.  Ins.  670, 


220,  220 

1528,  1868 

319,  1590,  1656, 1699 

1983 

720,  1951,  2021 

897,  897,  1850,  2064 

1622,1662 

17 

5,330,331,  1182,  1208,  1814 

2167 

.  335,476,  985 

.      829,  836 

838, 1056 

258 

87,  881,  885,  889,  1712 

1837 

120,  1840 

1182,  1604 

507,  1993,  2052 

236 

1213,  1935, 1991 

2030,  2113 

203,413,1746,1958 

1669 

.  1711 

1427 

226 

.  1141,  1523,  1662 

710,  720 


661, 


Allegre's  Admrs.  v.  Maryl.  Ins.  Co.,  6  Har.  &  Johns.  408 ;  2  Gill  &  Johns. 
136,  .  .       144,453,479,591,620,1802,1803,1984 

Allen  r.  Hearne,  1  T.  R.  56,  .  .  .  .  .  211 

V.  Mut.  F.  Ins.  Co.  of  Hartford  County,  2  Maryl.  R.  Ct.  of  Appeals,  111, 

883 

r.  Pacific  Ins,  Co.,  21  Pick.  257,  .  .  ...     1932 

V.  Thompson,  10  N.  Hamp.  R.  32,     .  .  .  .  1853 


XX 


TABLE   OF   CASES. 


Allen  V.  Sugrue,  8  B.  &  C.  561  ;  Dans.  &  LI.  188  ;  3  Man.  &  Ryl.  9,     1526, 

15.38 

V.  Vermont  Mut.  F.  Ins.  Co.,  12  Verm.  3G6,       .  .       668 

Alliance  Mar.  Ins.  Co.  v.  La.  State  Ins.  Co.,  8  La.  K.  11,     3G9,  383,  383,  1838 
Alsop  V.  Coit,  12  Mass.  40,  .  .  .  .  .  .   670,  1904 

V.  Commercial  Ins.  Co.,  1  Sumn.  451,     7,318,  508,585,  610,  617,  1196, 

1474,  2127 
Alston  V.  Campbell,  4  Brown's  Pari.  Cas.  476,  .  ,  .       286 

V.  Mechanics  Mut.  Ins.  Co.,  1  Hill,  510  ;  4  id.  329,  .  .       66,  553 

Alwood  u.  Henckell,  Park,  280;  Marsh.  593,    .  .  .        1493,1669 

Alves  V.  Bunbury,  4  Camp.  28,        ....  .  2050 

American  Ins.  Co.  v.  Bryan,  26  Wend.  563 ;  1  Hill,  25,         733,  1081,  1106, 

1106, 2076 

V.  Center,  4  Wend.  45,         1434,  1442,  1461,  1536,  1539, 

1543,  1548, 1575,  1631 

V.  Coster,  3  Paige's  Ch.  323,  .  1057,  1563,  1626 

V.  Dunham,  12  Wend.  463;  15  id.  9,     .  1072,  1154 

v.  Francia,  9  Penn.  R.  390,       .      1543,1605,1801,2095, 

2173,  n. 

V.  Griswold,  14  Wend.  399,       .        432,  1260,  1261,  1815 

• .  r.  Insley,  7  Penn.  223,         .  1049,  1959,  2052,  2058 

V.  Ogden,  15  Wend.  532;  20  Wend.  287,     719,  727,  729, 

732,  735,  1046,  1537,  1539,  1940,  1940 

V.  Whitney,  3  Cowen,  210;  5  id.  712,         .  441,  1197 

Amery  v.  Rodgers,  1  Esp.  207,         ....    1203,  1829,  2126 
Amicable  Society  v.  Bolland,  2  Dow  &  Clark,  1,  .  .        1043,  1046 

Amory  v.  Gilman,  2  Mass.  1,  .  .  .  .  .         5,  211 

.  V.  Hamilton,  17  Mass.  103,  ....       1766,1868 

V.  Jones,  6  Mass.  318,  .....  1115 

V.  McGregor,  15  Johns.  E.  36,  .  .  .  .  .       226 

Anderson  v.  Burnett,  5  How.  Miss.  R.  165,  .  .  .  540 

V.  Edie,  Marsh.  776  ;  2  Park,  640,      .  .  .  .353 

V.  Fitzgerald,  to  be  published  subsequent  to  Vol.  20  Eng.  L.  &  Eq. 

R.  (Press  of  Little,  Brown  &  Co.,)  S.  C.  17  Eng.  Jur.  995,     643 

V.  Pitcher,  2  B.  &  P.  164;  3  Esp.  124,   ...  781 

V.  Royal  Exch.  Ass.  Co.,  7  East,  38,  .  .  1607,  1767,  1777 

V.  Wallis,  2  M.  &  S.  240,  .  .  .  1524,  1618 

Andree  v.  Fletcher,  2  T.  R.  161;  3  id.  266,      .  .  377,498,1846 

Andrew  r.  Robinson,  3  Camp.  199,  ....  1883 

Andrews  v.  Beeckcr,  1  Johns.  Cas.  411,  .  .  .  •     2060 

r.  Ellison,  6  J.  B.  Moore,  199,     .  .  .  .  1935 

V.  Essex  F.  &  M.  Ins.  Co.,  3  Mason  6,  117,  1048, 1117, 1154, 1937, 

1940 

Ex  parte,  2  Rose,  416,  .  .  .  .  .397 

V.  Glover,  Abb.  on  Shipp.  11,      .  .  .  .  1587 

r.  Marine  Ins.  Co.,  9  Johns.  R.  32, 

—  V.  Mclllsh,  5  Taunt.  496, 


Palsgrave,  9  East,  325, 
Angcrstein  v.  Bell,  Park,  55, 
Ann,  The,  1  Dod.  Ad.  221, 
Anna  Catliariiia,  The,  4  Rob.  107,  . 
Ann<'n  v.  Woodman,  3  'launt.  299, 


Ann  Green,  The,  1  (Jail,  271, 
Anonymous,  1  (Jliitty,  41', 

Skin.  327, 

1  Johns.  R.  312, 

T,d.  ]t;iy„i.  840, 

9  Mod.  66, 


156, 


158 


161, 


.  561 
1011 
2061,  2063 
968 
164, 169 
253,  791,  792,  793,  815,  815 
720,  720 
171,  260,  791,  812,815,  816 
217,  230,  2154 
076 
.  1232 
.  913, 2106 
2050 


TABLE    OF   CASES. 


XXI 


Anonymous,  2  Salkcld,  519, 

2  Salkeld,  444,  . 

V,  Sands,  10  Mod.  79, 

V.  Shoveer,  283, 

V.  Westmore,  6  Esp.  109, 

Anthon  v.  Fisher,  Doup;.  649,  n. 

Anthony  v.  Moline,  5  Taunt.  711, 

Antoine  v.  Morshead,  6  Taunt.  237, 

Antonia  Johanna,  The,  1  Wheat.  159, 

Apollo,  The,  5  Chr.  Rob.  286, 

Appleton  V.  Braybrook,  2  Starkie,  6 ;  G  M.  & 

V.  Crowninshield,  3   Mass.  443, 

Aranzmiendi  v.  La.  Ins.  Co.,  2  La.  R.  433, 
Aroangolo  v.  Thompson,  2  Camp.  620, 
Archibald  v.  Mercantile  Ins.  Co.,  3  Pick.  70, 
Ariadne,  The,  2  Wheat.  143, 
Armet  v.  Innes,  4  J.  B.  Moore,  150, 
Ai-initage  v.  Winterbottom,  1  M.  &  Gr.  130, 
Armroyd  r.  Union  Ins.  Co.,  2  Bin.  394, 
Armstronej  v.  Gilchrist,  2  Johns.  Cas.  424,  . 

^  V.  Toler,  11  Wheat.  258,      . 

Arnold  v.  United  Ins.  Co.,  1  Johns.  Cas.  363, 
Arnot  V.  Stewart,  5  Dow,  274,  . 
Arnsby  v.  Woodward,  6  B.  &  C.  519, 
Arrogante  Barcelones,  The,  7  Wheat.  496, 
Arthur,  The  Ship,  Edw,  202, 

■ V.  Schooner  Cassius,  2  Story's  R.  81, 

Ashley  v.  Ashley,  3  Sim.  149 

V.  Pratt,  16  Mees.  &  W.  471 ;  1  Exch.  R.  257, 

Assievedo  v.  Cambridge,  10  Mod.  77, 
V.  Sands,  10  Mod.  79, 


.  2014 
913 

199, 1621 

482 

.   996 

2029 

247,  1109 

228 

.  164,  814,  815 

838 

S.  34,  .      .     .  2050 

,   1170,1985,2008,2010 

1615,  1769 

1068,  2022,  2097,2122,  2140 

1117,  1117,  1117 

253 

.     1014 

.    191,  1908 

.       849 

1868 

.   214,  219,  221 

168 

.     1898 

771 

.       194 

841 

.     1621 

77,  82 

1009,  1012,  1013,  1015 

211,  1621 

173 

.       533 

,  551,  600,  1764,  2119 

.     825,  825 

211 

66,  660,  757 

437,445 

230 


144,457 


439, 


Astley  V.  Ray,  2  Taunt.  214 

Astor  V.  Union  Ins.  Co.,  7  Cowen,  202,        66, 

Atalanta,  The,  6  Ch.  Rob.  440, 

Atherford  v.  Beard,  2  T.  R.  610, 

Atherton  r.  Brown,  14  Mass.  152,    . 

Atkins  V.  Boylston  F.  &  Mar.  Ins.  Co.,  5  Mete 

Atkinson  v.  Abbott,  11  East,  135,    . 

V.  Gilby,  13  Eng.  Law  &  Eq.  R.  (Press  of  Little,  Brown  &  Co.,)  1821 

Atkinson  v.  Gyl'by,  13  Law  &  Eq.  Rep.  (Press  of  Little,  Brown  &  Co.,)  209  ; 

21  Eng.  Law  J.  Rep.  (x.  s.)  Ch.  848,      78  a.,  78  a.,  413  a.,  413  a. 

Atlantic  Ins.  Co.  v.  Lunar,  1  Sandf.  Ch.  R.  91,  .  .  1938 

w.  Storrow,  5  Paige's  Ch.  R.  285,       1106,1711,1796,    2162 

Atlas,  The,  3  Chr.  Rob.  299,  .  .  .  .  .174,  260,  790 

Attorney-General  v.  Cast  Plate  Glass  Co.,  2  Anstr.  39,    .  .  .67 


Atty  V.  Lindo,  4  B.  &  P.  236, 
Audley  !).  Duff,  2  B.  &  P.  Ill,    . 
Augusta,  The,  1  Dods.  A.  D.  Reports,  283,    . 
Aurora,  The,  4  Chr.  Rob.  218,      . 

,  Pike  (Master,)  8  Cranch,  203, 

-,  Walden  (Claimant,)  1  Wheat.  96, 


1646 

780,  945 

184,  289,  1568,  1847  b. 

174,  794 

253 

1985 

Austin  V.  Drew,  Holt,  126  ;  6  Taunt.  436  ;  4  Camp.  3G0,  .     1096,  1097 


Avery  v.  Scott,  22  Eng.  Law  &  Eq.  R.  287  ;  20  Eng.  Law  &  Eq.  R.  (Press 
of  Little,  Brown  &  Co.,)  327,  .  .  .      365,  1940 

Aveson  v.  Kinnard,  6  East,  188  ;  2  Smith,  646,         .  .  .  894 

Aylwin  v.  Favin,  5  Bos.  &  Pull.  430,       ....  1989 

Aymer  v.  Astor,  6  Cowen,  266,  .....         1100 


XXll 


TABLE    OF   CASES. 


B. 

Babcock  v.  Montgomery  County  Mut.  Ins.  Co.,  6  Barbour's  Supr.  Ct.  R.  637, 

1097 
Backhouse  v.  Ripley,  1  Park,  8th  ed.  24,       .  .  .460 

Badger  v.  Ocean  Ins.  Co.,  23  Pick.  347,  .  ,  .  1696 

V.  Bank  of  Cumberland,  26  Maine,  428,         ...  265 

Baillie  v.  Moudigliani,  Park,  8th  ed.  117;  Marsh.,  2d  ed.  728,      1135,  1138, 

1140,  1462,  1718 
Bain  v.  Case,  3  C.  &  P.  496,        .  .  .  .  .      2101,  2147 

V.  Kippen,  Millar's  Ins.  445,      .....  1001 

Bainbridge  v.  Neilson,  10  East,  329  ;  1  Camp.  237,     1662, 1663,  1665,  1666, 

1704 
Baker  v.  Bent,  1  Russ.  &  M.  224,  cited  Beaumont  on  F.  &  Life  Ins.  2d  ed. 

1236 
540 

1924 

1129 


1846,  p.  8,  n.,      . 

t'.  Carey,  19  Pick.  496,       ...... 

V.  Langhorne,  4  Camp.  396  ;  2  Marsh.  R.  215  ;  6  Taunt.  519, 

ii.  INIanutacturers'  Ins.  Co. ;  Mass.  Sup.  Ct.,  Suffolk,  1851,      1099 

V.  Mar.  Ins.  Co.,  2  Mason,  369, 

V.  Paine,  1  Vez.  sen.  456,  ..... 

V.  Towry,  1  Stark.  436,  ..... 

Bakewell  v.  United  Ins.  Co.,  2  Johns.  Cas.  246, 

Ballard  v.  Merchants'  Ins.  Co.,  9  Louisiana,  258, 

Baltic,  The,  1  Act.  Ap.  Cas.  25,  ..... 

Baltimore  Ins.  Co.  v.  M'Farlane,  4  Ilar.  St  Johns.  31, 

.  V.  Tailor,  3  liar.  &  Johns.  198, 

Bangor  Ins.  Co.  v.  Colman,  16  Maine  (4  Shepley)  R.  207, 

Bank  of  U.  S.  v.  Devaux,  5  Cranch,  62, 

Bank  of  Utica  v.  Smaller,  2  Cowen,  770, 

Barbara,  The,  4  Chr.  Rob.  1,       . 

Barber  v.  Brace,  3  Conn.  49, 

■  V.  Fletcher,  1  Doug.  305, 

V.  French,  1  Doug.  281, 

Barclay  r.  Cousins,  2  East,  544,  . 

-'  V.  Stirling,  5  M.  &  S.  6, 

Baring  v.  Christie,  5  East,  398,     . 

V.  Claggett,  3  B.  &  P.  201, 

V.  Henkle,  Marsh.  Ins.  240, 

V.  lioyal  Ex.  Ass.  Co.,  5  East,  99, 

. V.  Veaux,  2  Camp.  541,   . 

Barker  v.  Blakcs,  9  East,  283,  261,  746,  747,  748,  824,  916,  1129,  1669 

. r.  Ludlow,  2  Johns.  Cas.  289,       ....       144,1764 

. V.  Marine  Ins.  Co.,  2  Mason,  369,      .  .  .  192,  312 

V.  Pluen.  Ins.  Co.,  8  Johns.  307,  757,  802,  806,  1268,  1328,  1742, 

1801, 1802,  1804 
.  1886 
388,  2021 
.    245 
1815 
Barnard  v.  Adams,  Sup.  Ct.  of  U.  S.,  1850,  M.  S.,       .  .  .  1953 

Banicvvall  v.  Cliurch,  1  Caincs,  217,  .  134,  598,  724,  994,  1086 

barney  w.  Collin,  3  Pick.  115,  .  .  .  .  .  .134 

V.  MarylaiKl  Ins.   Co.,  5  Ilar.  &  Johns.   139,  1161,  1507,  2022 

Barrr.  flil.Hon,  5  M.'cs.  &  W.  390,         ....  185,925 

P.arras  v.  London  Ass.  Co.,  Marsh.,  2d  cd.  200;  Park,  64,  .  955 

Barrclli  i;.  Ilagaii,  13  Louisiana,  480,    ....  .1395 


.     117 

1758 

.    1764 

451 

.      222 

2028,  2044 

.  1956 

1772 

.     167 

2013,  2113 

.  1940 

1281 

551,  554 

2144 

315,  1209 

474,942,  1142,  1740 

.    813 

813,  2109 

1758 

2109 

.     1160, 1162 


Barkic  r.  Chandlcss,  3  Camp.  17, 
Bariow  V.  Lcikit',  4  J.  B.  Moore,  8, 

V.  Mcintosh,  12  East,  311, 

V.  Ocean  Ins.  Co.,  4  INIetc.  270, 


TABLE    OF   CASES.  XXlll 

Barrett  v.  Rogers,  7  Mass.  297,       .....  758 

Barrett  v.  Union  Mut.  F.  Ins.  Co.,  Mass.  S.  J.  C.  Suff.,  Marcli,  1851,         881 

V.  Union  Mut.  F.  Ins.  Co.,  7  Cashing,  175,  .  .  211G 

Barrow  t'.  Bell,  4  B.  &  C.  736;  7  D.  &  R.  244,  .  .  .    1758 

Barry  i-.   Louisiana  Ins.   Co.,  11  Martin,  N.    S.  630,        .  1083,2124 

Bartlett  v.  Pentland,  10  B.    &   C.   760  ;  1  L.  &  VV.  235,  .  140,  140, 

1883 

D.  Walter,  13  Mass.  267,     .  .  .  .326,419,480,588 

Bartle  v.  Colman,  4  Pet.  S.  Ct.  R.  184,  .  .  .  .214 

Barzillai  v.  Lewis,  2  Park,  526,      .....  802 

Bas  v.  Steele,  3  Wash.  C.  C.  R.  381, 2124 

Batesv.  Grabham,  2  Salk.  444,        .  .  .  .  .  116 

V.N.  Y.  Ins.  Co.,  3  Johns.  Cas.  238,         .  .  .  .87 

t?.  Todd,  1  M.  &R.  106, 2126 

Batre  v.  Louisiana  Ins.  Co.,  13  La.  577,  .  .  .  .1815 
Battaille  t;.  Merchants'  Ins.  Co.,  3  Robinson's  (La.)  R.  384,  .  866 
■Battcrsby  V.  Smith,  3  Madd.  110,  .....  2124 
Bauduy  r.  Unionlns.  Co.,  2  Wash.  C.  C.  R.  391,  .  .  .  383,624 
Baxter  v.  Lansing,  7  Paige's  Ch.  R.  350,  .  .  .  ,771 
V.  New  England  Mar.  Ins.  Co.,  3  Mason,  96,           .             .  570 

6  Mass.  R.  277,  .  .2109 


u.  Rodman,  3  Pick.  435,        .....  345 

Bayard  v.  Mass.  F.  &  M.  Ins.  Co.,  4  Mason,  256,  .  .  .790 

Bazett  V.  Meyer,  5  Taunt.  824         .....  1109 

Beach  i;.  Fulton  Bank,  3  Wend.  573,  .  .  .  .11 

Beadle  v.  Chenango  County  Mut.  Ins.  Co.,  3  Hill,  161,       .  .  873 

Beake  v.  Tyrrell,  or  Tyrwhitt,  1  Show.  6 ;  3  Mod.  105;  Comb.  120;  Holt,  47, 

2104 
Beale  iJ.Pettit,  1  Wash.  241,    .  .  .  .  .         1662,2126 

Bean  v.  Stupart,  1  Doug.  10,  .  .  .  .  68,  756,  766 

Beardslee  v.  Richardson,  11  Wend.  25,  ....     1885 

Beatson  v.  Ilaworth,  6  T.  R.  531,    .  .  .  .  .  1012 

Beatty  V.  Marine  Ins.  Co.,  2  Johns.  R.  109,       ....     1690 
Beaver,  The,  3  Chr.  Rob.  292,         .....  1027 

Beckwaitc  v.  Nalgrove,  3  Taunt.  41;  1  Holt,  288,         .  .  .607 

Beckwith  v.  Sidebotham,  1  Camp.  116,        .  .  .  .   619,  2112 

Beddington,  The,  2  Hagg.  Ad.  R.  422,  .  .  .        1249,  1265 

Bedford  Com.  Ins.  Co.  v.  Parker,  2  Pick.  1,  .  .  1392,  1410 

Belden  v.  Campbell,  6  Eng.  Law  &  Eq.  R.  (Press  of  Little,  Brown  &  Co.), 
472 ;  S.  C,  20  Eng.  Law  J.  R.  (n.  s.)  Exch.  342,        .      289,  301 

V.  Seymour,  8  Conn.  R.  304,      .  .  .  .  .515 

Bell  r.  Ansley,  16  East,  141,  .  .  381,418,2021,2059,2061 

V.  Auldjo,  4  Doug.  48,         .  .  .  .  .  .1873 

u.  Bell,  2  Camp.  475,     ....  472,575,934,1125 

V.  Beveridge,  4  DalL  272,  ....  1669,  1678,  1679 

V.  Bromfield,  15  East,  364,        .....  809 

V.  Carstairs,  14  East,  374 ;  2  Camp.  544,      .  554,  554,  745,  751,  2109 

i;.  Chapman,  10  Johns.  R.  183,  ....  2030 

V.  Columbian  Ins.  Co.,  2  Johns.  R.  98,       ....     1951 

— •  V.  Firemen's  Ins.  Co.,  3  Rob.  (La.)  R.  423  ;  4  id.  423,  .  189 

V.  Gilson,  1  B.  &  P.  345,  ....        148,  223,  1965 

?;.  Hobson,  16  East,  240,      .....         939,2117 

V.  Humphries,  2  Starkie,  345,   .....  1851 

V.  Janson,  1  M.  &  S.  201,    ......     2013 

V.  Marine  Ins.  Co.,  8  Serg.  &  Rawle,  98,  .  .        593,933,1146 

r.  Nixon,  1  Holt,  423,  and  426,  n.,  ....     1497 

r.  Puller,  12  East,  496,  n.,         .....  1725 


XXIV 


TABLE   OP   CASES. 


Bell  V.  Reid,  1  M.  &  S.  726,       .... 

V.  Reed,  4  Binn.  127,    . 

V.  Smith,  7  D.  &  R.  646       . 

2  Johns.  R.  98,  .  ,  . 

V.  Western  M.  &  F.  Ins.  Co.,  3  Rob.  (La.)  R.  428 

120,  1 
Bello  Corrunes,  The,  6  Wheat.  152,      . 
Bempde  v.  Johnstone,  3  Ves.  jun.  198, 
Bendyr  v.  Oyle,  Sty.  16G,  172, 

Benham  v.  United  Guaranty  and  Life  Ins.  Co.,  14  Eng 
of  Little,  Brown  &  Co.)  524 ;  S.  C,  16  En 

Benjamin  v.  Sinclair,  1  Bailey,  1 74, 

Bensley  v.  Bignold,  5  B.  &  A.  335, 

Benson  v.  Chapman,  6  M.  &  Gr.  792, 

Bent  V.  Baker,  3  T.  R.  27  ;  7  id.  604,    . 

Bentaloe  v.  Pratt,  Wallace,  64, 

Bentham  v.  Benson,  Gow,  45,    . 

Bentzon  (Claimant)  v.  Bo3'le,  9  Cranch,  191, 

Berens  v.  Rucker,  1  W.  Bl.  313, 

Berkley  v.  Watlings,  7  Ad.  &  El.  29, 

Bermon  v.  Woodbridge,  Doug.  781, 

Bernon,  The,  1  Chr.  Rob.  102, 

Bernardi  v.  Motteux,  Doug.  554, 

Berne,  City  of,  v.  Bank  of  England,  9  Ves.  347 

Berthon  v.  Loughman,  2  Starkic,  258,  . 

Berthoud  v.  Atlantic  Ins.  Co.,  13  La.  R.  539, 

Bethune  v.  Neilson,  2  Caines,  139, 

Betsey,  The,  1  Chr.  Rob.  93, 

1  Chr.  Rob.  332,   . 

The  Ship,  2  Hagg.  28, 

Bettemore  v.  Hayes,  5  B.  &  Ad.  456,     . 
Betty  Cathcart,  The,  1  Chr.  Rob.  220, 
Beurse  Van  Koningsberg,  The,  2  Chr.  Rob.  169, 
Bevan  v.  United  States  Bank,  4  Whart.  301, 
Biays  v.  Union  Ins.  Co.,  1  Wash.  C.  C.  R.  506, 

V.  Chesapeake  Ins.  Co.,  7  Cranch,  415, 

Bilbie  v.  Lumley,  2  East,  4G9,    . 

Bill  V.  Mason,  6  Mass.  313, 

Birch  V.  Depeyster,  4  Camp.  385;  1  Stark.  R.  210, 

Bird  V.  Applcton,  8  T.  R.  562, 

1-.  Pigou,  2  Sel.  N.  P.  981, 

V.  Thompson,  1  Esp.  339, 

Berkley  v.  Presgravc,  1  East,  220, 

Bishop  V.  Pcntland,  7  B.  &  C.  219 ;  1  M.  &  R.  49, 

Bixby  V.  Franklin  Ins.  Co.,  8  Pick.  86, 

Bize  V.  Dickason,  1  T,  R.  285, 

V.  Fletcher,  1  Doug.  271,  . 

Black  V.  Marine  Ins.  Co.,  11  Johns.  287, 

V.  Braybrook,  2  Starkic,  7, 

Blackburne  v.  Tliompsoii,  15  East,  81;  3  Camp.  61, 
lilackciiliagen  ?'.  London  Assurance  Co.,  I  Camp.  454, 
Blackclt  V.  Weir,  .''.  J',.  &  C.  384, 

■ V.  Royal  Exch.  Ass.  Co.,  2  Cr.  &  Jer,  244,    13 

Bla'kford  v.  Preston,  H  T.  R.  Hi),  . 
J',la<kliam's  Case,  1  Salkcld,  290, 
Blackhurst  v.  Cockcll,  3  T.  R.  360, 


.   152 

.  701,  720 

.  2054 

1379,  1815 

5  id.  423,   90,117, 

90,  193,  394,  422,  996 

194,  198 

.  158,  159 

,  1931 

Law  &  Eq.  R.  (Press 

2.  Jur.  697,  527,  642, 

642 

758 

.   219 

1637, 1701 

.  2052 

138,  1003,  2134 

.  2086 

825 

278,817 

2126 

699,  1819,  1834 

159 

2106,  2109 

224 

.  2112 

24 

1849, 1865, 1881 

326 

.   831 

2095 

14 

1623 

,   245 

1340,  1407 

•   548 

1773,  1777 

817,  1818,  1997,  2052 

.  968,  969 

.  1944 

.  221,231,  231,2109 

.   219 

2003,  2052 

1279,  1299 

711,  733,  1758 

265,  1328, 2124 

507,  551,  551,  1853 

660,  1009 

1162 

.  2060 

.  163,  225 

966,  1023,  nil,  1115 

.  2053 

,  464,  985, 1416, 1780 

215 

.  2105 

638,  762,  848 


TABLE    OF    CASES. 


XXV 


Blagg  V.  New  York  Ins.  Co.,  1  Caines,  549,       .        596,  802,  809, 
Blaine  v.  The  Charles  Carter,  4  Cranch,  328,  . 

Blanchard  v.  Alleghany  Mut.  Ins.  Co.,  1  Penn.  359,     . 

f.  Uyer,  21  Maine,  111, 

Waite,  28  Maine,  51, 

Blyth  i\  Shepard,  9  Mees.  &  Wels.  768,      . 
Boddington  v.  Castelli.     See  Castelli. 
Bodle  V.  Chenango  Mut.  Ins.  Co.,  2  Comst.  53, 
Bodwy  V.  Union  Ins.  Co.     See  Bauduy. 
Boede's  Lust,  The,  5  Chr.  Rob.  233, 
Boehin  V.  Bell,  8  T.  R.  154, 

•(.'.  Combe,  2  M.  &  S.  172, 

Boetlinck  v.  Schneider,  3  Esp.  58,  . 

Boctlingk  V.  Inglis,  3  East,  381, 

Bohlen  V.  Delaware  Ins.  Co.,  4  Binn.  444,     • 

Bold  V.  Rotherain,  8  Ad.  &  El.  N.  S.  797, 

Bolton  I'.  Gladstone,  5  East,  155, 

Bonaparte,  The,  3  Wm.  Rob.  298 ;  1  Eng.  Law  &  Equity 

Brown  &  Co.)  641,  . 
Bond  V.  Brig  Cora,  2  Wash.  C.  C.  R.  80,     . 

V.  Gonzales,  2  Salk.  445, 

V.  Nutt,  Cowp.  601 ;  1  Doug.  344,  .  ,  \ 

Bondrct  v.  Hentig,  Holt,  N.  P.  Cas.  149,  .        '    . 

Booth  V.  Hodgson,  6  T.  R.  405, 

Borden  v.  Hingham  M.  F.  Ins.  Co.,  18  Pick.  523, 

Bordes  v.  Ilallett,  1  Caines,  444,    . 

Bork  V.  Norton,  2  M'Lean,  U.  S.  Circuit  Court  Reports,  4 

Borradaile  v.  Hunter,  5  M.  &  Gr.  639  ;  5  Scott,  N.  R.  418 

Bosley  i'.  Ches.  Ins.   Co.,  3  Gill  &  Johns.  450, 

Boston,  The  Schooner,  1  Sumn.  328, 

Bottonily  v.  Bovill,  5  B.  &  C.  210  ;  7  D.  &  R.  702, 

Boulton  V.  Dobree,  2  Camp.  163, 

Bouser  v.  Colby,  1  Hare's  Ch.  R.  109, 

Bousfield  V.  Barnes,  4  Camp.  228, 

V.  Creswell,  2  Camp.  545, 

BoutHower  v.  Wilmar,  2  Selwyn,  N.  P.  590,     . 
Bowden  i'.  Vaughan,  10  East,  415, 
Bowen  v.  Bell,  20  Johns.  R.  338, 

V.  Hope  Ins.  Co.,  20  Pick.  275,        . 

V.  Merchants'  Ins.  Co.,  20  Pick.  215,      . 

Bowne  v.  Shaw,  1  Cains,  489, 

Bowring  v.  Elmslie,  7  T.  R.  216,  n.,      . 

Boyd  V.  Dubois,  3  Camp.  133,  . 

Boynton  v.  Middlesex  F.  Ins.  Co.,  4  Mete.  R.  212, 

Boyfield  v.  Brown,  2  Str.  1065, 

Boyle  V.  Atty,  1  Gow,  50,  • 

Bracebridge  v.  Buckley,  2  Price,  200, 

Bradford  v.  Boylston  Ins.  Co.,  11  Pick.  162,      . 

-  V.  Levy,  2  Carr.  &  Payne,  137;  1  R.  &  M.  331, 


1117,  1117 

1561 

.     1939 

1964 

24 

2022 


Bradhurst  v.  Col.  Ins.  Co.,  9  Johns.  R.  17, 
Bradley  v.  Hunt,  5  Gill.  &  Johns.  54,  . 

i;.  Nashville  Ins.  Co.,  3  La.  Ann.  R 


1813, 1935, 1973 

.  150,  165,  241 

321,  322,  1819,  2008 

1064,  2022 

2110 

.  2110 

1057,  1670,  1674 

963,  983 

2109 

R.  (Press  of  Little, 

302,  1561 

1027,  1028 

.   780 

773 

974,  1107,  1129 

1908 

.  1215 

1621,  1705,  1742 

23,    1441, 1442 

,   .     891,  895 

1526,  1666,  2028 

.  1027 

1008,  1027,  1063 

.     2030 

771 

368,  370, 1191 

1901 

.     1078 

551 

515 

953 

.       953 

.  625, 1157 

1089,  1094,  1758 

611 

.     1932 

1726,  1727 

1564,  1591 

771 

.     2132 

1050, 1135 


708, 


Bradlie  v.  Maryland  Ins.  Co.  12  Peters  S.  C.  R.  378, 

Bradstreet  v.  Neptune  Ins.  Co.,  3  Sumn.  601,   . 
Bragg  V.  Anderson,  4  Taunt.  229,   . 
Barndagee  v.  Nat.  Ins.  Co.,  20  Johns.  R.  328,  . 
Brandon  v.  Curling,  4  East,  410,     . 

VOL.  I.  C 


1057,  1142,  1635,  1639 

79 

1146 

1523,  1524,  1525, 1539, 

1543, 1551,  1558 

.  1154 

1013 

849,  849,  2035 

.  149,  150 


XXVI  TABLE   OP   CASES. 

Brandon  v.  Nesbitt,  6  T.  R.  23,  ...  147,  149,  2029 

Brazier  V.  Clap,  5  Mass.  R.  ] ,  .....  1051 

Breasted  v.  Farmers'  Loan  Society,  4  Hill,  73,  ...       895 

Breed  v.  Eaton,  10  Mass.  R.  22,      .  .  .  .  .  1025 

V.  Ship  Venus,  Abbott  on  Shipp.  by  Story,  350,  n.,        .  .     1328 

Brewer  17.  Union  Ins.  Co.,  12  Mass.  173,      ....  1114 

Brewster  v.  Kitchell,  Ld.  Raymond,  371  ;  1  Salk.  198,  .  .       769 

V.  Sewall,  3  B.  &  A.  296,  ....  2103 

Brichta  i'.  N.  Y.  Lafayette  Ins.  Co.,  2  Hall,  372,  .     .        .  107,  108,  423 

Bridge  v.  Niagara  Ins.  Co.,  1  Hall,  247,  423,      .  388,  1469,  1868,  2173  n. 

Bridgerv.  Whitehead,  8  Ad.  &  El.  571,     ....  2122 

Bridges  v.  Hunter,  1  M.  &  S.  15,  .  .  .  .  620,  659,  682 

Bridgeman's  Case,  Hob.  11,  ....  1561,1985 

Briggs  V.  Call,  5  Mete.  504,        ....  1815,1881,1908 

r.  Lawrence,  3  T.  R.  454,    .....  1846 

Brine  r.  Featherstone,  4  Taunt.  869,     .  .  •  .  551,554 

Brinley  i'.  Nat.  Ins.  Co.,  11  Mete.  195,         ....  1484 

Brisban  r.  Boyd,  4  Paige's  Ch.R.  17,     ....  17,1858 

Brockelbank  v.  Sugrue,  5  Carr.  &  P.  21 ;  1  Mood.  &  Rob.  102;  1,  B.  &  Ad. 
81,    .  .  .  .  .  .  .  •       1872,  2114 

Bromley  v.  Hesseltine,  1  Camp.  75,  .  .  .  158,  159,  238 

Brooke  v.  La.  Ins.  Co.,  4  Martin,  N.  S.  640,  681 ;  5  id.  530,  1196,  1535, 

1767,  1773 
Brooks  i;.  McDonnell,  1  Y.  &  C.  502,  ....         1713 

V.  Oriental  Ins.  Co.,   7  Pick.  259,     704,  985,  1201,  1300,  1406,  1426, 

1435,  1778,  1790 
Broom's  Case,  1  Salk.  32,  .  .  .  .  .  .2105 

Brotherston  v.  Barber,  5  M.  &  S.  418,  .  .  .  1663,  1704 

Brouo-h  V.  Higgins,  2  Grattan's  R.  408,    .  .  .  .  .349 

V.  Whitmore,  4  T.  R.  206,     .....    144,  463 

Brouwer  v.  Hill,  1  Sandf.  Ch.  R.,  629,    .  .  523,  523,  1939,  1945 

u.  Appleby,  1  Sandf.  158,    .....  623 

Brown  v.  Bullen,  Doug.  392,        .....  2105 

V.  Carstairs,  3  Camp.  161,     .....  971 

V.  Cooke,  4  Comst.  51,     .  .  .  .  .  .523 

f.  Girard,  4  Yates,  115,         .....  720 

V.  Hartford  Ins.  Co.,  3  Day,  58,  ...      1839,  2034 

u.  Neilson,  1  Caines,  525,     .  .  .     1149,  1496,  1951,  2139 

f.  Phoenix  Ins.  Co.,  4  Bin.  445,  .  .  .  .      1494,1674 

u.  Quilter,  Ambl.  619,  .....  402 

. V.  Smith,  1  Dow,  349,     ....  1106,  1531,  1702 

. r.  Stapyleton,  4  Bing.  119,  ...  1394,1398 

. r.  Taylcur,4  Ad.  &E11.  241;  5Nev.  &M.  472,  .  .    1000 

r.Tierncy,  1  Taunt.  517,     ....       963,966,1160 

I'.  Vignc,  12  East,  283,    .....  963,966 

V.  Union  Ins.  Co.,  6  Hall's  L.  J.  526,  .  .  1068,  1074 

V.  Williams,  28  J\Iaine,  252,         ....  183,  592 

Browning  v.  Morris,  Cowp.  790,        .....  1846 

Bruce  i;.  Ship  Mary,  Bee's  Rep.  1 20,      .  .  .  .  .1985 

Brutus,  The,  5  Rob.  331,  n.  &  App.  No.  1,  .  ...  270 

Bryant  v.  Commonwealth  Ins.  Co.,  6  Pick.  131  ;  9  id.  485  ;  13  id.  543,       134, 

1602,  1732,  1953,  1983.  2024 

V.  Ocean  Ins.  Co.,  22  Pick.  200,  .  .  .  551,  553 

r.  Rogers,  MS.  .  .  .  .  .  .1300 

Buchanan  i;.  Ocean   Ins.   Co.,  6  Cowen,  318,  .  .      5,  202,  1267,  2018 

V.  Rucker,  1  Camp.  63,      ....  2050,  2104 

Buck  V.  Che.s.  Ins.  Co.,  1  Pet.  S.  C.  R.  151,        .  .  313,  384,  625 

Buckley,  u.  Lyttle,  10  Johns.  R.  117,  ....  2030 


TABLE   OF   CASES. 


XXVll 


Bufe  V.  Turner,  2  Marsh.  R.  4G  ;  6  Taunt.  338, 
Bullcn  V.  Denning,  5  B.  &  C.  842,     . 
Buller  V.  Harrison,  Cowp.  565,    , 
— : —  V.  Fisher,  3  Esp.  67;  Peake's  Add.  Cases,  183, 
Bulkley  v.  Derb.  Fish.  Co.,  1  Conn.  571, 
Bunting  v.  Lepingwell,  4  Co.  29,  a.,  7  id.  43, 
Burgnot  v.  La.  State  M.  &  F.  Ins.  Co.,  12  La.  R.  326, 
Burnet  v.  Kensington,  1  Esp.  416  ;  7  T.  R.  210,      . 
Burr  V.  Foster,  Dane's  Abridg.  Tit.  Concealment, 
Burritt  v.  Saratoga  County  Mut.  Ins.  Co.,  5  Hill,  188, 


.     635 

131 

.      1930,  1998 

1099,  1424 

253,  860 

2105 

.    2123 

1761 

.       609 

70,  70,  542,  635,  638, 

674,  872  a. 

Burrows  v.  Turner,  24  Wend.  276,  .  .  .  .   953,  1958 

Burton,  Exparte,  13  Eng.  Law  &  Eq.  Rep.,  (Press  of  Little,  Brown  &  Co.,) 

435  ;  16  Eng.  Jur.  967  ;  21  Eng.  Law  J.  (n.  s.)  Chan.  781,     1795,  a. 

1939, 1957 
&.  A.  73, 


Busk  V.  Roy.  Exch.  Ass.  Co.,  2  B. 

D.  Bell,  16  East,  3, 

Butler  V.  Allnut,  1  Starkie,  222, 
Wildman,  3  B.  &  A.  398, 


Butriok  v.  Allen,  8  Mass.  273, 

Byfield,  The,  Ed.  Ad.  R.  88,  .  .  . 

Byrne  v.  Louisiana  State  Ins.  Co.,  7  Martin,  N.  S.  126, 

Byrnes  v.  Alexander,  1  Brev.  213, 

V.  National  Ins.  Co.,  1  Cowen,  265, 

C. 


709,  711,  733,  1049,  1096 

245 

232,  247 

1115,  1126 

.     2050 

.     247,  826 

982, 1535 

.     559,  560 

.     1434 


Caines  v.  Bleecker,  12  Johns.  300, 

Calbreath  v.  Gracy,  1  Wash.  C.  C.  R.  198,  219, 


1867 
595,  788,  809,  1669,  1674, 
1682, 1688 
Caldwell  V.  Ball,  1  East,  21 ;  1  T.  R.  205,  ....     2126 

V.  Western  Ins.  Co.,  19  La.  R.  42,  .  .  .  731 

V.  St.  Louis  Perpetual  Ins.  Co.,  1  La.  Ann.  R.  85,    133,  1099,  1126, 

1162 


Caledonia,  The,  4  Wheat.  100, 

Calhoun  v.  Ins.  Co.  of  Pennsylvania,  1  Binn.  293, 

Calisto,  The,  Davies's  Dist.  Ct.  R.  29, 

Callaghan  v.  Atlantic  Ins.  Co.,  1  Edw.  Ch.  R.  64, 

Callander  v.  Oelrichs,  5  Bing.  N.  C.  58, 

Callender  v.  Ins.  Co.  of  North  America,  5  Binn.  525, 

Calvert  v.  Bovill,  7  T.  R.  523, 

Calypso,  The,  2  Chr.  Rob.  154,  298,      . 

Camberlenjr  v.  McCall,  2  Dall.  128;  2  Yeates,  281, 


.       222 

832,  1068,  1073,  2109 

.     314,  985 

567,  779 

1900 

.     1634 

2109 

.       829 

.     ■        .  1496 


Cambioso's  Ex'rs  y.  Assignees  of  Maffit,  2  Wash.  C.  C.  R.  98,  ,       219 

Cambridge  v.  Anderton,  2  B.  &  C.  691 ;  1  R.  &  M.  60 ;  4  D.  &  R.  203 ;  1  C. 


&P.  213, 
Camden  v.  Anderson,  5  T.  R.  709;  1  B.  &  P.  272, 

V.  Cowley,  1  Bl.  41  7, 

V.  Edie,  1  H.  Bl.  21,     . 

Came  v.  Moy,  2  Sid.  121,     . 
Camelo  v.  Britten,  4  B.  &  A.  184, 
Campbell  v.  Bourdieu,  2  Str.  1265, 

V.  Christie,  2  Starkie,  64, 

V.  Innes,  4  B.  &  A.  423,  . 

V.  Rickards,  5  B.  &  Ad.  840, 

V.  Stein,  6  Dow,  116, 

V.  Thompson,  1  Stark.  R.  490, 

V.  Williamson,  2  Bay.  23  7, 


1495,  1534,  1577 

210,  219,  265,  2125 

955 

.  1989 

1931 

232,  2122 

780 

.   113 

.  627,  627 

.  2112 

265 

.  1796 

1000 


XXVlll  TABLE   OF   CASES. 

Campion  v.  Colvin,  3  Bing.  N.  C.  17,         .         .  .  .  ,     1084 

Cannan  u.  Meaburn,  1  Bing.  243;  8  Moore,  127,  633,        .  .  1C25 

Cantillon  r.  London  Assurance  Co.,  3  Burr.  1553,         .  .  .     1761 

Capen  &  Bangs  v.  Boylston  Ins.  Co.,  MS.  .  .  .  1191,  1741  a 

1;.  Washington  Ins.  Co.,  Boston  Daily  Advertiser,  Nov.  24,  1853,    727, 

735 
Cardigan,  Earl  of,  u.  Armitage,  2  B.  &  C.  197,       ...  131 

Carl,  The,  Edw.  Ad.  R.  339,      .....  148,  246 

Carlwalter,  The,  4  Chr.  Rob.  207,  .  .  .  .     255,  796 

Carolina,  The,  (Skinner,)  1  Chr.  Rob.  305,       .  .  .  .794 

(Nordquist,)  4  Chr.  Rob.  256,  .  .  .     815,  825 

Caroline,  The,  6  Rob.  461,         .....  825,825 

Carpenter  v.  Washington  Ins.  Co.,  16  Peters,  495 ;  4  Howard,  185,      286,  289, 

640,  688,  825,  825,  868,  881,  881,  1511,  1712,  1728 

V.  American  Ins.  Co.,  1  Story's  C.  C.  R.  57,      .  .  543 

Carrere  v.  Union  Ins.  Co.,  3  Har.  &  Johns.  324 ;  2  Hall's  Law  J.,  197,      809, 

809,  1956,  2028 
Carrington  v.  Merchants'  Ins.  Co.,  8  Peters,  495,    .  222,  281,  1123,  1154 

CarrolU'.  Boston  Mar.  Ins.  Co.,  8  Mass.  515,     .  .76,84,88,185,2124 

Carruthers  v.  Grav,  3  Camp.  142;  15  East,  35,       .  .  .   221,  2138 

V.  Sheddon,  6  Taunt.  14 ;  1  Marsh.  R.  416,      311,  392,  423,  2021, 

2125 

y.  Sidebotham,  4  Maule  &  S.  77,      .  .  .       1059,1758 

Carson  v.  Marine  Ins.  Co.,  2  Wash.  C.  C.  R.468;  1  id.  509,  1219,  1229,  1229 
Carstairs  t;.  AUnut,  3  Camp.  497,  .....  210,1049 
Carters.  Boehm,  1  W.  Bl.  593;  3  Burr.  1905,      211,  533,  568,  572,  572,  667, 

1943,  2112 

r.  Rocket,  8  Paige's  Ch.R.  437,  .  .  .  .405 

V.  Roval  Exch.  Ass.  Co.,  2  Str.  1249,  .  .  .    992,  1001 

V.  United  Ins.  Co.,  1  Johns.  Ch.  463,        .  .  85,  1973,  1975 

Gary  v.  White,  1  Bro.  P.  C.  284,     ....  1564,  1591 

V.  King,  Cas.  Temp.  Hard.  304,    .....     2039 

Case  V.  Barber,  T.  Raym.  450,  .....  2004 
V.  Davidson,  5  Moore,  116  ;  5  M.  &  S.  79  ;  8  Price,  542 ;  2  B.  &  B.  379, 

1649,  1740 

V.  Hartford  Ins.  Co.,  13  Illinois  R.  676,     .  .  1098,  1811,  2144 

Cassedv  v.  La.  State  Ins.  Co.,  6  Martin,  N.  S.  421,  .  .    1683,  1881,  1953 

Casscres  v.  Bell,  8  T.  R.  166,     ......     2029 

Castclli  V.  Boddington,  16  Eng.  Law  &  Eq.  R.  (Press  of  Little,  Brown  &  Co.) 
127  ;  1  id.  1853,  p.  4 ;  ed.  Exch.  p.  281 ;  22  Eng.  Law  J.  (Q.  B.)  5, 

84,  1847  a 

Castling  V.  Aubert,  2  East,  325,       ....    1853,  1915,  1923 

Catharine,  The,  1  Eng.  Law  &  Eq.  R.  (Press  of  Little,  Brown  &  Co.)  679; 

3W.  Rob.  1,        .....    302,303,1579,1596 

Catherina  Elizabetli,  The,  5  Chr.  Rob.  232,  ...  274 

Maria,  The,  Edw.  Adm.  R.  336,         .  .  .  .247 

Catlett  V.  Columbia  Ins.  Co.,  3  Cranch's  C.  C.  R.  192,        .  .  1230 

V.  Pa.-ilic  Ins.  Co.,  1  Wend.  561 ;  4  id.  75,    386, 1628,  1702,  2021,  2122 

V.  Pacific  Ins.  Co.,  Paine's  R.  594,      386,  806,  1702,  1828,  1932,  2050, 

2051,  2091 
Catiin  v.  Springfiehl  Ins.  Co.,  1  Sumner,  43d,  .  .  878,  1096,  1811 

Calron  v.  'I'ennessce  Ins.  Co.,  6  Humphrey,  176,    .  .  .  639 

Cuvan  V.  Stewart,  1  Starkie,  525,  .....     2050 

Ca/alet /'.  St.  Barbc,  1  T.  R.  1S7,  ....  1538,1539,1555 
Caze  r.  P.altimon!  Ins.  Co.,  7  Cranch,  358,         .  .  .        1138,1718 

r.  Richards,  2  Serg.&  Rawle,  237,  n.,  .  .  .  1318,1318 

V.  ReiUy,  3  Wash.  C  C.  R.  29K,   .  .  .  .        1318,  1318 

Center  v.  Am.  Ins.  Co.,  7  Cowen,  564,       1057,  1426,  1539,  1548,  1732,  1741 


TABLE   OF   CASES.  XXIX 

Center  r.  Union  Ins.  Co.,  7  Cowen,  564,     .  .  .  .1963 

Chalmers  v.  Bell,  3  B.  &  P.  604,  .  .  .  .  .210 

Chamberlain  v.  Harrod,  5  Greenl.  420,        .  .  .  .  116,  1590 

Chandler  v.  Worcester  Mut.  Fire  Ins.  Co.,  3  Cushing's  K.  328,  .     1095 

Chanome  V.  Fowler,  4  Wend.  1 73,  .  .  .  .  2110 

Chapman  u.  Frazer,  Park,  450;  3  Burr.  1361,  .  .       1844,1845 

V.  Kennett,  1  Park,  329,  ....  1845 

V.  Walton,  10  Bing.  57,  ....  .     2112 

Charleston  Ins.  &  Trust  Co.  v.  Corner,  2  Gill,  410,     1447,  1497,  1644,  1647, 

1953,  2021 

17.  Neve,  2  McMuUan,  237,     .  .     98,1797 

Charlotta,  The,  Edw.  Ad.  R.  252, 843 

Charlotte,  The,  4  Chr.  Rob.  Ap.  13;  5  id.  275,  305,  .  .  271 

Chase  v.  Eagle  Ins.  Co.,  5  Pick.  51,       .  .  .  .  704,  726 

V.  Washington  Mut.  Ins.  Co.  of  Cincinnati,  12  Barb.  Sup.,  Ct.  R.  595, 

567,  1939 
Chattock  V.  Shaw,  1  Moody  &  Rob.  498,  ....  648,  901 
Chauraud  v.  Angerstein,  Peake's  N.  P.  43,        .  .  .  145,  620 

Cheriot  v.  Barker,  2  Johns.  346,      .  .  .    116,  133,  415,  483,  1207 

V.  Toussat,  3  Binn.  220,  .  .  .  •  .  .     2109 

Chesapeake  Ins.  Co.  v.  Stark,  6  Cranch,  268,     1669,  1685,  1703,  1705,  1881 

r.  Allegre's  Adm'rs,  2  Gill  &  Johns.  164,     .       591,  2028 

Child  V.  Sun  Mut.  Ins.  Co.,  3  Sandf.  26,      119, 141, 144, 458,  980,  1002, 1801, 

1803,  2100 
Chinnery  u.  Blackburne,  1  H.  Bl.  117,        ...  .  .  1738 

Chitty  V.  Selwyn,  2  Atk.  359,  .....  935,  1002 
Christian  v.  Combe,  2  Esp.  489,  ....  1815,  1815,  2095 
Christianberg,  The,  6  Chr.  Rob.  376,      .  .  .  .  .281 

Christie  V.  Secretan,  8  T.  R.  192,     .  .  .  551,745,1844,2109 

?;.  Lewis,  2  Brod.  &  Bing.  410;  5  Moore,  211,       .  .  1083 

Christopher,  The,  2  Chr.  Rob.  209,        .  .  .  .  .2104 

Church  v.  Bedient,  1  Caines's  Cas.  21,         ....  1662 

t;.  Hubbart,  2  Cranch,  187,        .  .  411,  1154,  2050,  2110 

v.  Marine  Ins.  Co.,  1  Mason,  341,    .  .       1523,1524,1590,1662 

V.  Teasdale,  1  Brevard,  255,      .....     2095 

Cincinnati  Ins.  Co.  v.  Bakewell,  4  B.  Monroe,  541,  1693,  1697,  1705 
&  Firemens'  Ins.  Co.  v.  May,  20  Ohio,  211,       1046,  1049,  1480  a, 

1557, 2112,  2173 
Citizens'  Ins.  Co.  v.  Glasgow,  9  Missouri,  406,         .  .    1099,  1162,  1684 

Citto,  The,  3  Chr.  Rob.  38,        .  .  .  .  .  .159 

City  Bank  v.  Cutter,  3  Pick.  414,    .....  140 

City  Ins.  Co.  V.  Corlies,  21  Weild.  367,  ....     1097 

Clamageran  i>.  Banks,  6  Martin,  N.  S.  551,  .  .  .  1980 

Clapham  v.  Cologan,  3  Camp.  382,        ....  430,  757 

Clapp  V.  Tirrell,  20  Pick.  247,         .....  515 

Clarena,  The,  3  Wm.  Rob.,  283,  ....   1137  a.,  1420 

Clark  t).  Baker,  11  Mete.  586,  .  .  .  .  .  126 

17.  Bush,  3  Cowen,  151,     .  .  .  .  .  .1743 

V.  Firemen's  Ins.  Co.,  18  La.  R.  431,  .  .  .        422,  484,  489 

V.  Gray,  6  East,  564,         .....       2014,  2025 

V.  Inhabitants  of  Blytring,  2  B.  &  C.  254  ;  3  Dowl.  &  Ryl.  489,       2001 

V.  Manufacturers'  Ins.  Co.,  8  Howard,  235  ;  2  Woodb.  &  M.,  472,      70, 

553,  635,  636,  875,  2165 

i>.  Mass.  F.  &  Mar.  Ins.  Co.,  2  Pick.  104,      1142,1447,1451,1633, 

1634,  1641 

r.  Morey,  10  Johns.  69,  ....  2030,2113 

V.  Ocean  Ins.  Co.,  16  Pick.  289,     .       336,  481,  1181,  1230,  1238,  1950 

V.  Protection  Ins.  Co.,  1  Story's  R.  109,  195,  215,  220,  221,  231,  235,  703 

C* 


XXX  TABLE   OF   CASES. 

Clark  V.  United  F.   &  M.  Ins.  Co.,  7  Mass.  R.  365,     .         133,  1000,  1203, 

1267,  1328,  1410 
Clarke  v.  New  Eng.  Mut.  F.  Ins.  Co.,  6  Cushlng's  R,  342,     641,  880,  880, 

881,  904,904,  1812,  1813 
Clarkson  r.  Phoenix  Ins.  Co.,  Johns.  1,     .  1337,1535,1613,1708,1733 

V.  Philadelphia  Ins.  Co.,  1  Brown's  Pa.  R.  152,     .  .  810 

Clary  v.  Pro.  Ins.  Co.,  1  Wright,  Ohio,  227,      ,  .  .  .489 

Clason  V.  Smith,  3  Wash.  C.  C.  R.  156,        ....  578 

V.  Simmonds,  6  T.  R.  533,  n.,       .  .  .  .       1007,  1010 

Clay  V.  Harrison,  1  L.  &   W.  104,  .  .  178,  197,  198,  1986 

Clayton  v.  The  Harmony,  1  Pet.  Adm.  R.  70,  .  .  .  .     1719 

Clegg  I'.  Levy,  3  Camp.  166,  .....  2110 

Clement  V.  Jones,  12  Mass.  Reports,  60,  .  .  .  .1868 

Clendinning  v.  Church,  3  Caines,  141,        ...  7,  211,  2018 

Cleveland  v.  Union  Ins.  Co.,  8  Mass.  308,      735,  751,  953,  978,  1050,  1056 
Clifford  w.  Hunter,  3  C.&  P.  16;  1  M.  &  M.  103,  .  .    708,1947 

Clio,  The,  alias  The  Wm.  Pitt,  6  Rob.  67,         .  .  .  .247 

Clues  r.  Bathurst,  Cas.  Temp.  Hard.  11;  2  Str.  960,  .  .  2105 

Clugas  r.  Penaluna,  4  T.  R.  466,  .....      1846 

Cochran  r.  Fisher,  1   C.  M.  &  R.  809  ;  2  Crompton  &  Mees.  581 ;  Tyrwh. 
424;  5  id.  496,  .  .  .  .  .773 

V.  Retberg,  3  Esp.  121,      .  .  .  .  .68,  144 

Cockerell  v.  Cincinnati  Mut.  Ins.  Co.,  16  Ohio,  149,      .  .        9,  75,  975 

Cockey  v.  Atkinson,  2  B.  &  A.  460,  ....  144 

Cocking  r.  Eraser,  4  Doug.  215,  .....      1767 

Cocksedge  v.  Fanshaw,  1  Doug.  114,  .  .  .  .  2085 

Coffin  V.  Newburyport  Marine  Ins.  Co.,  9  Mass.  436,  .        1050,  1229 

??.  Phoenix  ins.  Co.,  15  Pick.  R.  291,  .  .         2132,  2173,  n. 

Storer,  5  Mass.  251,  ....  1441,1719,1726 

Cosgeshall  u.  Amer,  Ins.  Co.,  3  Wend.  283,     133,  432,  442,  939,  941,  970, 

997,997 

V.  Read,  5  Pick.  454,      .....  1651 

Coggs  I".  Barnard,  2  Ld.  Raymond,  909,  ....     1867 

Cognac,  The,  2  Hagg.  Adm.  R.,  277,  ....  1265 

Cogswell  V.  Ocean  Ins.  Co.,  18  La.  R.  84,  .  .  .  .     1099 

Cohen  v.  Hannam,  5  Taunt.  101,     .  .  .  881,  417,418,  2018,  2021 

?;.  Bulkclev,  5  Taunt.  165,  .  .  .  .  .1989 

V.  Hinckley,  2  Camp.   51  ;  1  Taunt.  249,  907,  1049,  2129,  2139 

Coit  r.  Commercial  Ins.  Co.,  7  Johns.  385,         .  .  .         144,  1764 

V.  Smith,  3  Johns.  Cas.  16,         ....  1136,1148 

Colby  u.  Hunter,  3  C.  &P.  7;  M.  &  M.  81,         .  .         778,1321,1844 

Cole  V.  Banger  Ins.  Co.,  16  Maine  (4  Shepley's)  R.  207,      ,  .         1  767 

Coles  V.  Mar.  Ins.  Co.,  3  Wash.  C.  C.  R.  159,      .  .       1041,  1086,  2132 

Collamer  v.  Day,  2  Vermont  R.  144,  ....  211 

Colley  V.  Streeton,  2  B.  &  C.  271  ;  3  D.  &  R.  522,         .  .  .    1559 

Cologan  w.  London  Ass.  Co.,  5  M.  &  S.  447,  .  .  1704,1773 

Col(|ulioun  V.  N.  y.  Fireman's  Ins.  Co.,  15  Johns.  352,  .  253,  258 

Colson  V.  Bonzev,  6  Orecnl.  4  74,      .  .  .  .  .2124 

Columbia,  The,  1  Chr.  Rob.  154,  .  .  .  826,829,839, 

Columbia  Ins.  Co.  v.  Lawrence,  10  Peter's  Sup.  Ct.  R.  507,  733,  1096, 

1810,  1947,  1948,  1962,  2052 
Columbian  Ins.  Co.  v.  Ashby,  4  Peters's  Sup.  Ct.  R.  139,     1279,  1700,  1710, 

1732,  1953 

V.  Ashby,  13  Peters's  Sup.  Ct.  R.^43,      1302, 1313,  1318, 

1545 

V.  Catlett,  12   Wheat.   383,      133,  447,  1002,  1228,  1260, 

12G1,  1676,  1677,  1678,  1686,  1718,  2157 


TABLE    OP   CASES.  XXXI 

Columbian  Ins.  Co.  v.  Lawrence,  2  Peters's  Sup.  Ct.  R.  25,       180,  421,  C40, 

673,  1810,  1947 

D.  Lynch,  11   Johns.  233,     .  369,1251,1834,1839 

r.  Bradhurst,  9  Johns.  9,  .  .  .         1318 

Columbus,  The,  3  Wm.  Rob.  Adm.  R.  158,       .  .  .      1559,  1940 

Col vill,  Ex  parte,  1  Montagu,  110,    .....  95 

Colvin  V.  Thompson,  1  LI.  &  W.  140,  .  .  .  .  .    1534 

Comber  ?>.  Anderson,  1  Camp.  523,  .  .  .  1899,1902 

Comet,  The,  Edw.  Adm.  R.  32,  .  .  .  .  830 

,  5  Chr.  Rob.  285,         ....  2104,  2104 

Commercen,  The,  1  Wheat.  382;  2  Gal.  R.  264,  .  .  272,  825 

Commonwealth  Ins.  Co.  i-.  Chase,  20,  Pick.  142,    .  .  1557,  1559 

Conizares  v.   Santissima  Trinidad,  Hopkins  Adm.  R.  35  ;  also.  Marsh.  Ins. 

714  b.,  n.,  .....  1564,  1568 

Conover  v.  Mut.  Ins.  Co.  of  Albany,  3  Denio,  254,  84,  93,  879,  1973,  2077 
Consequa  v.  Willings,  Peters's  C.  C.  R.  229,  .  2110,  2119,  2120 

Constable  v.  Noble,  2  Taunt.  403,  .  .  .  116,  144,  975, 

Constantia,  The,  (Henricksen,)  6  Chr.  Rob,  321,      .  .  255,  264 

(Holbec,)  6  Chr.  Rob.  461,  n.,  .  .  .  825 

Convenientia,  The,  4  Chr.  Rob.  201,  .  .  .  278,  914 

Conway  v.  Davidson,  10  East,  536,         .....    914 

V.  Forbes,  10  East,  539,         ....     393,  914,  1518 

V.  Gray,  10  East,  536,    ....  311,  393,  1518 

Cook  u.  Black,  2  Jones  on  Annuities,  1186,  .  .      91,896,1815 

V.  Com.  Ins.  Co.,  11  Johns.  40,      .  .  .  .  1080 

t'.  Essex  Fire  &  Mar.  Ins.  Co.,  6  Mass.  122,  .  .  .         1115 

V.  Townson,  Park,  Ins.  448,  .  .  .  .  1030 

Cooke  V.  Graham,  3  Cranch,  235,     .  .  .  .  .120 

u.  Oxley,  3  T.  R.  653,      .  .  .  .  .  .17 

Cookendorper  u.  Preston,  4  Howard,  317,    .  .  .  122,133 

Coolidge  V.  Blake,  15  Mass.  R.  429,        .  .  ,  .  .855 

V.  Gloucester  Marine  Ins.  Co.,  15  Mass.  R.  341,     1204,  1207,  1439, 

1539,  1540,  1649,  1659,  1708,  1741 

V.  Gray,  8  Mass.  527,  .....  962 

V.  N.  Y.  Firemen  Ins.  Co.,  14  Johns.  308,  733,  802,  1162,  2047, 

2091 
Coopery.  South,  4  Taunt.  802,  .....    2124 

Cope  V.  Rowlands,  2  Mees.  &  W.  67,        .  .  ,  .  1846 

Copeland  v.  Mercantile  Ins.  Co.,  6  Pick.  198,  .  185,  192,  1970 

V.  N.   E.  Ins.  Co.,  2  Mete.  432,  .  727,  731,  733,  733 

Corcoran  v.  Gurney,  16  Eng.  Law  &  Eq.  R.  (Press  of  Little,  Brown  &  Co.,) 

461,  ......  1758 

Corban  v.  Downe,  5  Esp.  N.  P.  41,     .  .  .  .  .        940 

Corlett  V.  Gordon,  3  Camp.  472,  .  .  .  1869,  1888 

Cormack  u.  Gladstone,  11  East,  347,  ....         999 

Cornelia,  The,  Edw.  Adm.  R.  360,  ....       247,  249 

Cornell  v.  Le  Roy,  9  Wend.  163,       .  .  .  .  885,  1806 

Cornu  u.  Blackburne,  Doug.  641,  .  .  .  148,148,148 

Cornwal  v.  Wilson,  1  Ves.  sen.  511,  ....        1864 

Corp  V.  United  Ins.  Co.,  8  Johns.  277,     .  .  .  .  1115 

Cort  V.  Delaware  Ins.  Co.,  2  Wash.  C.  C.  R.  375,     .  .  .725 

Cosmopolite,  The,  4  Chr.  Rob.  8,  .  .  .  .  .247 

Coster  V.  Phoenix  Ins.  Co.,  2  Wash.  C.  C.  R.  51,      .  .  .  125 

Coston  V.  Alleghany  County  Mut.  Ins.  Co.,  1  Penn.  323,  .    1795,  1939 

Cotterill  v.  Cuff,  4  Taunt.  285,         .....         2014 

Coulon  u.  Bowne,  1  Caines,  288,  ....        539,2119 

Courier,  The,  Edw.  Ad.  R.  249,       .  .  .  .  .  842 


XXXll 


TABLE    OF   CASES. 


Court  r.  Delaware  Ins.  Co.,  2  Wash.  C.  C.  R.  480,       .  .  .     2152 

D.  Martineau,  3  Doun;.  161,    ....       581,58.5,1998 

Courtnay  y.  Miss.  F.  &  M.  Ins.  Co.,  12  La.  233,  .  66,448,923,995 

Cousine'Marianne,  The,  Edw.  Ad.  R.  346,  .  .  .     245,  795 

Cousins  V.  Nantes,  3  Taunt.  513,  .  .  .  .        1932,  2018 

Covington  v.  Roberts,  5  B.  &  P.  378,  ....  1297 

Cowie  V.  Barber,  4  M.  &  S.  16,  .  .  .  .  .1297 

Coxt;.  May,  4  M.  &  S.  152,  .  .  .  .  .  1129 

V.  Parrv,  1  T.  R.  464,         .....  383,  2061 

V.  Prentice,  3  M.  &  S.  344,       .....  1997 

Craibr.  D'^th,  7  T.  R.  6  70n.,  ....        2060,2162 

Craig  V.  Murgatroyd,  4  Yeates,  161,  .  .  .      361,  1251,  1838 

V.  Tennet,  1  Car.  &  Marsh.  43,  ....      2052 

V.  The  Hartford  Fire  Ins.  Co.,  Blatchford's  C.  C.  R.  280 ;  Livingston's 

Law  Magazine,  February,  1853,  p.  96,      .  .  .2171 

t\  United  Ins.  Co.,  6  Johns.  226,     .  .  .     1115,1115,1802 

V.  United  States  Ins.  Co.,  Peters's  C.  C.  R.  410,  253,  724,  2122 

Cram  r.  Aiken,  13  Maine,  229,       ....  1282,1282 

Cranston  v.  Philadelphia  Ins.  Co.,  5  Binn.  538,  •  .  .     1959 

Craufurd  v.  Hunter,  8  T.  R.  13,     .      322,  438,  1193,  1859,  1966,  2018,  2021 
Cray  u.  Hartford  Fire  Ins.  Co.,  1  Blatchford's  C.  C.  R.  280,  .  1983 

Creery  I'.  Holley,  14  Wend.  26,  .  .  .  .  •     2119 

Crocker  17.  Whitney,  10  Mass.  R.  323,  ....  1974 

Crockett  r.  Dodge,  12  Maine,  190,        ....        1271,1316 
Crooke  v.  Mali,ll  Barbour's  Sup.  Ct.  R.  205,         ...  523 


Crofts  V.  Marshall,  7  C.  &  P.  597, 
Crosby  v.  Fitch,  12  Conn.  R.  410, 
Cross  V.  Shutliffe,  2  Bay,  220, 
Crousillat  v.  Ball,  4  Dall.  294,    . 
Crowley  v.  Cohen,  3  B.  &  Ad.  478, 


136,  1087,  1424,  1953,  2112,  2119 

1000,  1950 

1010 

.     1074 

191,  378,  424,  437,  439,  444,  498,  1471,  ■ 

1478 

Crowningshield  v.  New  York  Ins.  Co.,  3  Johns.  Cas.  142,  .  .  1040 

Cruder  v.  Philadelphia  Ins.  Co.,  2  Wash.  262,         .     710,  710,  723,  727,  1018 

t;.  Pennsylvania  Ins.  Co.,  2  Wash.  C.  C.  R.  339,      .      720,1018,1018 

Cruikshank  i;.  Browner,  11  Barb.  228,  .  .  .  .  .528 

V.  Jansen,  2  Taunt.  301,  .  .  .  770,  774,  933 

CucuUu  D.  Louisiana  Ins.  Co.,  5  Martin,  N.  S.  480,        .  .  .     2104 

?;.  Orleans  Ins.  Co.,  6  Martin,  N.  S.  13,      .  .  1157,2104 

Cullen  V.  Butler,  3  B.  &  A.  403;  5  M.  &  S.  461;  1  Starkie,  138,     1052,  1099, 

1126,  1126,  2022 
Gumming  v.  Forrester,  1  M.  &  S.  494,  ....  507,  514 

Cumpston  y.  M'Nair,  1  Wend.  457,  ....  1852 

Curcicr  V.  Philadelphia  Ins.  Co.,  5  Serg.  &Rawle,  113,  .  .     1731 

Curell  V.  Mississippi  Ins.  Co.,  9  La.  R.  163,  .  .  .     529,  620 

Curling  v.  Long,  1  B.  &  P.  636,  ....  333,  333 

Curry  v.  Bland,  Park,  «th  ed.  811,  .  .  .  .  507 

V.  CoiiiMionwealth  Ins.  Co.,  10  Pick.  535,  .    635,  640,  1037,  1806 

Curson  V.  Smith,  Wharton's  Dig.  tit.  Insurance,  No.  28,  p.  320,      .  537 

Curtis  ?;.  Perry,  6  Ves.  739,        ......     2124 

Curtis.sos's  Case,  3  Clir.  Rob.  21,  n.  .  .  .  .  159 

Cynthia,  The,  20  Kng.  Law  &  Eq.  R.  (Press  of  Little,  Brown  &  Co.)  623 ; 
S.  C,  16  Eng.  Jur.  (Adm.)  749,      .  .  .  .289 


D. 

Dachctt  V.  Williams,  Ellis  on  Insurance,  142, 
Da  Costa  v.  Edmunds,  4  Camp.  142, 
r.  Firth,  4  Burr.  1966,      . 


1845 

.       460 

.   211,  1815 


TABLE   OF   CASES. 


xxxin 


Da  Costa  v-  Jones,  Weskett,  tit.  Wager,  a.  3;  Cowper,  729,     .  .      211 

r.  Newnham,  2  T.  R.  407,      .     1104,  1326,  1328,  1329,  1431,  1558 

V.  Scandret,  2  P.  W.  170;  2  Eq.  Cas.  Abr.  636,  .  .   609,  1938 

V.  Villa  Real,  1  Atk.  49  ;  Sir.  961 ;  1  Ves.  159,  .  .     2105 

Dadmun  Manufivcturing  Co.  v.  Worcester  Fire  Ins.  Co.,  11  Mctc.  429,    87,  92, 

880 


D'Aguilar  v.  Tobin,  1  Holt,  185;  2  Marsh.  R.  215, 
Daitjie,  The,  3  Chr.  Rob.  139,  . 
Dakin  v.  Hudson,  6  Cowen,  221, 
Dale  V.  Hall,  1  Wils.  281, 
Dalgleish  v.  Brooks,  15  East,  295,  . 

V.  Davidson,  5  D.  &  R.  6, 

— : V.  Hodgson,  7  Bing.  495, 

Dalmada  v.  Motteux,  9  Park,  Ins.  357, 

Dalzell  V.  Muir,  1  Camp.  532, 

Damson  v.  Cawley,  Newfoundland  R. 

Danaous,  The,  4  Chr.  Rob.  255,  n., 

Dante,  The,  2  W.  Rob.  Ad.  R.  427, 

Darby  v.  Newton,  6  Taunt.  544,       .... 

Davenport  v.  New  England  Fire  Ins.  Co.,  6  Cushing's  R.  340, 

D'Aubigny  v.  Duval,  5  T.  R.  604 ;  4  Notes  of  Adm.  Cases,  408, 

De  Aojuilar  v.  Tobin,  Holt's  N.  P.  Cas.  185, 

David^son  v.  Case,  5  Moore,  116  ;  2  B.  &  B.  379  ;  5  M.  &  S. 

V.  Gwinne,  12  East,  381, 

V.  Willasey,  1  M.  &  S.  313, 

Davis  V.  Wilkinson,  4  Bing.  573  ;  1  Stark.  R.  115, 

V.  Boardman,  12  Mass.  R.  80,  .  .  . 

V.  Gildart,  Beawes,  Lex.  Merc.  242 ;  2  Park,  Ins.  424, 


.    750, 2153 
.       254 
2037 
1100,  2006 
778, 1160,  1841,  2025 
1414,  1414 
2109 
210,  906 
514 
433,  753 
165 
.    523a,  1847b 
210 
641,  874a 
1917 
2153 
79 ;  8  Price,  542, 
1649,  1708,  1740 
.     1452 
332 
1925,  2126 
409,857,  1969 
361,  1251,  1838, 
2146 
333,  1208,  1649,  1741 
1773 
.     2058 
1719 
671,  745 
211, 1621 


Davy  V.  Hallett,  3  Caines,  16,    . 

V.  Milford,  15  East,  559, 

Dawes  i'.  North  River  Ins.  Co.,  7  Cowen,  462, 

Dawn,  The,  Davies's  R.  Dist.  Ct.  of  U.  S.,  Maine,  121, 

Dawson  v.  Atty,  7  East,  367,     . 

Dean  r.  Dicker,  2  Str.  1250, 

Deblois  v.  Ocean  Ins.  Co.,  16  Pick.  303,         706,  726,  1014,  1492,  1539,  1543, 

1577 
Debegnis  v.  Armistead,  10  Bing.  107,    .  .  .  .  .215 

DeboU^  V.  Pennsylvania  Ins.  Co.,  4  Whart.  68,       .  .  .  389,  2072 

Dederer  v.  Delaware  Ins.  Co.,  2  Wash.  C.  C.  R.  61,     1063,  1068,  1732,  1803 
Defflis  V.  Parry,  3  Bos.  &  Pull.  3,  .  .  .  .  .248 

De  Forest  v.  FultOA  F.  &  M.  Ins.  Co.,  1  Hall,  84,         311,  311,  313,  383,  412, 

1158,  1856,  1864,  1868,  1889, 2019 
De  Frise  V.  Stephens,  Park,  349;  Marsh.  521,  n.    .  .  .  1081 

De  Gaminde  v.  Pigou,  4  Taunt.  246,      ....         507,  1847 
De  Garey  V.  Clagget,  Park,  511;  Marsh.  368,         ...  780 

De  Garron  r.  Galbraith,  Park,  194,       .  .  .  .  .1815 

De  Ghetoft  v.  London  Ass.  Co.,  Brown's  P.  C.  436 ;  Mos.  83,    77,  1933,  1939, 

1973 
De  Guelder  V.  Depeyster,  1  Vern.  363,  ....  1847  b 
D'Eguino  V.  Bewicke,  2  H.  Bl.  551,       .  .  .  .  .780 

De  Hahn  r.  Hartley,  1  T.  R.  343,   .  .  .  .  68,669,1997 

Deidericks  v.  Commercial  Ins.  Co.  of  N.  Y.,  10  Johns.  234,       .  .     1661 

Delahay  v.  Memphis  Ins.  Co.,  8  Humph.  684,  ...  640 

Delaney  v.  Stoddart,  1  T.  R.  22,  .  .  77,  82,  999,  1866,  1892 

Delano" t;.  Bedford  Mar.  Ins.  Co.,  10  Mass.  347,  .  .         913,1129 

Delanoy  v.  Robson,  5  Taunt.  605,    .....     906,  912 


XXXIV  TABLE    OF   CASES. 

Delavigne  i;.  United  Ins.  Co.,  1  Johns.  Cas.  310,  .  .       1844,1937 

Delaware  Ins.  Co.  V.  Archer,  3  Rawle,  216,  .  .  .  1789 

?;.  Hogan,  2  Wash.  C.  C.  R.  4,  .  117,133,1937 

Delbie  v.  Proudfoot,  1  Show.  396,    .....  1931 

Delonguemcre  v.  N.  Y.  Fire  Ins.  Co.,  10  Johns.  120,    144,  144,  593,  759,  929 

V.  New  York  Ins.  Co.,  10  Johns.  201,     .  .  .       333 

V.  Phoenix  Ins.  Co.,  10  Johns.  127   .  .  .   333,  1207 

V.  Tradesman's  Ins.  Co.,  2  Hall,  589,     125,  673,  871,  873,  882 

Delovio  v.  Boit,  2  Gall.  398,        .  .  .  .  •       1934,1940 

De  Luneville  v.  Phillips,  5  B.  &  P.  97,         ,  .  .  .  149 

Dempzey  y.  Ins.  Co.  of  Pennsylvania,  1  Binn.  299,  n.,  .  .     2109 

Dennis  V.  Ludlow,  2  Caines's  R.  Ill,  .  ,  ,  601,756,776 

Dennison  v.  Modigliani,  5  T.  R.  580,     ....  584,  1029 

V.  Thomaston  Mut.  Ins.  Co.,  20  Maine,  125,         .  537,  542,  638 

Dennistown  v.  Lillie,  3  Blight,  1st  Ser.  202,       .  .  .  ,553 

Depaiba  v.  Ludlow,  1  Comyn,  361,  ....  211 

Depau  V.  Ocean  Ins.  Co.,  5  Cowen,  63,     1363,  1414,  1425,  1433,  1539,  1547, 

1554 
Depeau  v.  Russel,  1  Brevard,  441,  .....  2147 
Depeyre  v.  Western  F.  &  M.  Ins.  Co.,  2  Rob.  (La.)  R.  457,  ,   731,  1049 

Depeyster  r.  Columbian  Ins.  Co.,  2  Caines,  85,       .      1101,  1535,  1539,  1547 

v.  Gardner,  1  Caines,  492,     .  .  .  282,628,1157 

Deraismes  v.  Merchants'  Ins.  Co.  of  Albany,  1  Comst.  371,       523,  523,  1795a 
Deshon  t).  Merchants' Ins.  Co.,  11  Mete.  199,  ,  210,221,724,1043 

De  Silvale  v.  Kendall,  3  M.  &  S.  37,      .  .  .  .  338,  482 

De  Sousa  v.  Ewer,  Park  on  Insurance,  361,  .  .  .  2109 

De  Symonds  v.  De  la  Cour,  5  B.  &  P.  374,       ..  .  .  .     2052 

V.  Shedden,  2  B.  &  P.  153,      .  .  .  2017,2021 

De  Symons  U.Johnson,  5  B.  &  P.  7  7,    .  .  .  .  .2017 

De  Tastet  v.  Crousillat,  2  AVash.  C.  C.  R.  136,        .  .  .  1888 

V.  Taylor,  4  Taunt.  233,         .  .  .  .  .151 

Devall  V.  Burbridge,  4  S.  &  Watts,  305,       .  .  .  1900,  1901 

De  Yaux  r.  J'Anson,  5  Bing.  N.  C.  519,  .  .  .  .333 

v.  Salvador,  4  Ad.  &  Ell.  420,      .  .      1137,1328,1416,1436 

V.  Steele,  6  Bing.  N.  C.  358,  .  .  .  183,  323 

De  Vignier  v.  Swanson,  1  B.  &  P.  346,  n.,  ...  382 

De  Wolf  y.  N.  Y.  Firemen  Ins.  Co.,  20  Johns.  214  ;  2  Cowen,  56,     260,  600, 

601,  791,  2109 
D'llahn  v.  Hartley,  1  T.  R.  343  ;  2  id.  186,      .  .  .  762,  762 

Diana,  The,  5  Chr.  Rob.  60,  ....  .  159 

Dick  u.  Allen,  Park,  167,  ......     1460 

Dickenson  v.  Commercial  Ins.  Co.,  Anthon's  N.  P.  92,        .  .  606 

Dickey  v.  American  Ins.  Co.,  3  Wend.  658,        1535,  1539,  1556,  1557,  1662, 

1701 

V.  Baltimore  In.s.  Co.,  7  Cranch,  327,     ....       959 

V.  New  York  Ins.  Co.,  4  Cowen,  222,     1434,  1535,  1539,  1589,  1593, 

1662,  1681,  1701 

V.  United  Ins.  Co.,  11  Johns.  R.  358,  .  .        968,  969,  1162 

Dickson  v.  Lodge,  1  Starkie,  226,  .  .  2013,  2021,  2092,  2126 

Dichl  V.  General  Mut.  Ins.  Co.,  Sandford,  257,  .  .  .903 


Di.spatch,  The,  3  Chr.  Rol).  278, 
D'Israeli  v.  Jowctt,  1  Esp.  427, 
Dix  V.  Col)b,  4  Mass.  R.  512, 
Dixon  r.  Ilaniniond,  2  H.  &  A.  310, 

V.  Iloviil,  1  M.  &  I'.  656;  4  Bing.  665, 

V.  Reid,  5  H.  &  A.  59  7  ;  1  I).  &  R.  207, 


Sadler,  5  M.  Ik  W.  414,     .  .  .    706,  727,  729,  733,  1049 


Dobson  V.  Bolton,  Park,  177, 


285,  822 
.  2094 
95 
.  2124 
1895 
1068,  1542,  1619 


1758 


TABLE   OF   CASES. 


XXXV 


Dobson  V.  Sotheby,  1  Moody  &  Malk,  90,  . 

V.  Wilson,  3  Camp.  480, 

Dodge  V.  Rartol,  5  Greenl.  28G, 

V.  Union  Ins.  Co.,  17  Mass.  471,      1129,  1138,  1 

Doe  t'.  Lea,  11  East,  312, 

V.  Rosscr,  3  East,  15,    . 

Doe  ex  dem.  Pitt  v.  Laming,  4  Camp.  76, 

Domett  I'.  Young,  Car.  &  Marsh.  N.  P.  465, 

Donaldson  v.  Thompson,  1  Camp.  429, 

Donath  v.  Ins.  Co.  of  North  America,  4  Dall.  463, 

Donellan  v.  Read,  3  B.  &  Ad.  906, 

DonncU  v.  Columbian  Ins.  Co.,  2  Sumner,  366, 

Dorothy  Foster,  The,  6  Chr.  Rob.  88,    . 

Dorr  V.  New  England  Ins.  Co.,  11  Mass.  R.  1, 

^ Marine  Ins.  Co.,  4  Mass.  R.  221, 


V.  Pacific  Ins.  Co.,  7  Wheat,  581, 

V.  Union  Ins.  Co.,  8  Mass.  494, 

Dos  Ilermanos,  The,  2  Wheat.  76, 

Douglas  u.  Moody,  9  Mass.  548,  .  1337,1374 

V.  Scougal,  4  Dow,  269, 


884 

1139,  1306,  1934 

1282 

330, 1381, 1388, 1579 

67 

2105 

636 

1533 

1834, 2104,  2109 

393 

14 

131, 1780,  2141 

.  1385 

1147,  1670 

1602,  1622,  1662, 

1684,  1868 

849,  851,  852,  853,  1844 

1331,  1621,  1669, 1670 

166, 167 


,  1379,  1392,  1403 

.     700,  726 

.       442 

709,  1815, 1818 

119,  144,  439, 1937 

1989 

1572, 1582 

1002 

1166,  1755a 

1875,  2051 

.       258 

830 

75, 111 

1162 

.       984 

550,  924,  984,  1081 

.       215 


Dow  V.  Hope  Ins.  Co.,  1  Hall,  1 70, 

V.  Smith,  1  Caines,  32, 

V.  Whetten,  1  Hall,  174 ;  8  Wend.  160, 

Doyle  V.  Anderson,  1  Ad.  &  El.  635, 

V.  Dallas,  1  Moody  &  R.  48, 

V.  Powell,  4  B.  &  Ad.  267,     . 

Draco,  The,  2  Sumner,  157, 

Drake  v.  Marryatt,  1  B.  &  C.  473, 

Dree  Gebroeders,  The,  4  Chr.  Rob.  232, 

Drie  Vrienden,  The,  1  Dod.  Ad.  R.  269,     . 

Driggs  V.  Albany  Ins.  Co.,  10  Barb.  N.  Y.  Sup.  Ct.  R.  440 

Drinkwater  v.  London  Assurance  Co.,  2  Wils.  363, 

Driscol  V.  Bovill,  1  B.  &  P.  313, 

V.  Passmore,  1  B.  &  P.  200, 

Drury  v.  Defontaine,  1  Taunt.  131, 

Duchess  of  Kingston's  Case,  20  Howell's  State  Trials,  ed.  1816,  p.  355  ;  Hale's 
History  of  Common  Law,  p.  31;  11  Harg.  State  Trials,  p.  198, 
ed. 1781,  .....  2105,  2109 

Duckett  V.  Williams,  2  Cromp.  &  Mees.  348  ;  4  Tyrw.  240,    649,  653,  655,  902 

Duerhagen  v.  United  Ins.  Ins.  Co.,  2  Serg.  &  Rawle,  309,         .  .     1005 

Duffell  I'.  Wilson,  1  Camp.  401,       .  ,  .  .  ,173,533 

Duguet  V.  Rhinelander,  1  Johns.  Cases,  360;  2  id.  476;  1  Caines's  Cases  in 
Error,  XXV.  ....     166,167,627,1844 

Dumas  V.  Jones,  4  Mass.  647,  .....     380,471 

u.  Union  Ins.  Co.,  12  Serg.  &  Rawle,  437,         .  .       1205,1653 

Duncan  v.  Chamberlayne,  11  Sim.  Ch.  123,  ...  96 

V.  Coates,  3  Yeates,  378,  .  .  .  .  .1678 

u.  Koch,  Wallace,  33,  ....    1667,1669,1678 

V.  Sun  Fire  Ins.  Co.,  6  Wend.  488,      .  68,  763,  866,  867,  883 

Duncanson  v.  McClure,  4  Dall.  308,  ....  265 

Dunckbaar  African,  The,  1  Chr.  Rob.  107,  ....  797 
Dunham  v.  Commercial  Ins.  Co.,  11  Johns.  315,  1321,  1385,  1407,  1429,  1431 
Dunlop  V.  Gill,  1  B.  &  A.  334,         .....  210 

Depcyre  v.  Western  Mut.  Ins.  Co.,  2  Rob.  (La.)  R.  457,  .  .     2083 

Dupin  r.  Mutual  Ins.  Co.,  5  La.  Annual  R.  482,     .  .  ,  2167 

Duplanty  i'.  Commercial  Ins.  Co.,  1  Anthon's  N.  P.  Rep.  114,  .  .       433 

Dupuy  V.  United  Ins.  Co.,  3  Johns.  Cases,  182,       .      1535,  1539,  1543,  1543 


XXXYl 


TABLE   OF   CASES. 


Durand  v.  Tbouron,  1  Porter,  283,         ,             .  .             .             .2087 

Durell  V.  Bederley,  1  Holt's  N.  P.  Cas.  283,             .  .             .  607,  2112 

Dutilgh  V.  Gatliffe,  4  Dall.  446  ;  4  Cranch,  31,  n.,  .          1621,  1705,  1881 

Duval  r.  Commercial  Ins.  Co.,  10  Johns.  278,          .  .             .            1161 

Dwyer  v.  Edie,  Marsh.  Ins.  779  ;  2  Park,  7th  ed,  639,  .            354,  356 

Dyer  v.  Ashton,  1  B.  &  C.  3,            .             .             .  .             .            2061 

Dyson  r.  Rowcroft,  3  B.  &  P.  474,         .             .  .             .             .1766 


E. 

Eager  v.  Atlas  Ins.  Co.,  14  Pick.  141, 
Eagle,  The,  1  Acton's  Ap.  Cas.  65, 
Earle  v.  Harris,  1  Doug.  357, 

r.  Eowcroft,  8  East,  126, 

r.  Shaw,  1  Johns.  Cases,  313, 

East  India  Co.  v.  Atkins,  1  Strange,  768 ; 
Eaton  V.  Lyon,  3  Ves.  jun.  690, 

V.  Smith,  20  Pick.  150,     . 

Eden  r.  Parkinson,  2  Doug.  732,      . 
Eden  v.  Poole,  1  T.  B.  132,  n. ;  Park,  91, 
Edgar  r.  Bumstead,  1  Camp.  411, 

t'.  Fowler,  3  East,  222,    . 

Edward,  The,  4  Chr.  Rob.  68, 

Edwards  v.  Baltimore  Fire  Ins.  Co.,  3  Gill,  276, 


—  V.  Barrow,  Ellis  Ins.  116, 

—  V.  Footner,  1  Campbell,  530, 

—  V.  St.  Louis  Perpetual  Ins.  Co.,  7  Missouri  R.  (by  Bay,)  382,     439, 

918 


1434 

.       825 

773 

1062,  1068,  1073 

77,  912,  1002,  1670,  1674 

Com.  R.  348,  .  .     2071 

771 

126,  143 

784,  799,  915 

463,  1328 

.  507,  1922 

507,  1908,  1929 

272,  272,  284,  791 

1810,  1811,  1812,  1813, 

1950 

646 

547,  559,  667 


Eenrom,  The,  2  Chr.  Rob.  1,       . 

Egan  V.  Mut.  Ins.  Co.  of  Albany,  5  Denio,  326, 

Egginton  v.  Lawson,  6  Man.,  Gr.,  &  S.  414, 

Ekins  V.  East  India  Co.,  1  P.  W.  395, 

Elav.  French,  11  N.  H.  356,       . 

Elbers  v.  United  Ins.  Co.,  16  Johns.  128,      . 

Eliason  v.  Henshaw,  4  Wheat.  225, 

Elliot  V.  Wilson,  4  Bro.P.  C.  470,     . 

Eliza  and  Katy,  The,  6  Chr.  Rob.  185,  .     _        . 

Eliza  (The)  1  Moore's  Cases  before  the  Privy  Council, 

Elizabeth,  The,  Edw.  Adm.  R.  198,        . 

Elkin  V.  Janson,  13  Mees.  cSc  W.  655, 

EUery  v.  ISlerchants'  Ins.  Co.,  3  Pick.  46, 

V.  New  p:ngland  Ins.  Co.,  8  Pick.  14,     954,  975,  999, 1002, 1049, 1094, 

1099,  1126 
Ellmakcr's  Exrs.  v.  Franklin  Ins.  Co.,  5  Penn.  183,  '  .  .  493 
Elsabe,  The,  4  Chr.  Rob.  408,  .  .  .  .  .320 
Eltiiig  V.  Scott,  2  Johns.  157,  .  .  555,  660,  746,  1817,  1997,  2066 
Elton  r.  Brogden,  2  Str.  1264,  ....  984,1081 
V.  Larkins,  8  Bing.  198;  5  Carr.  &  Payne,  86,  385,             60,  605,  621 


216,  223 

866,  877 

1538 

1985 

1888,  1892,  1894 

157,  164,  1844,  2113 

.      21 

1006 

.    819 

),    .  .  1847  b 

.    841 

2074 

1760 


Ely  V.  Ilallett,  2  Caines,  57, 

Emancipation  (The)  1  Wm.  Rob.  Adm.  R.  124, 

Eriibdcn,  The.  1  Clir.  Rol).  16, 

Emmet  v.  Reed,  1  Sanf.  R.  Super.  Ct.  N.  Y.  229, 

Emulous,  Cargo  of  the,  1  (Jail.  583, 

Endraught,  Tlic,  1  Chr.  Rob.  19,  . 

Eenigheid,  'l"he,  1  Chr.  Rob.  210, 

Erasmus  r.  P>aiikH,  cited  2  JOast,  113, 

Erick  I'.  Johnson,  6  Mass.  193, 


576,  577 

1568,  1847  b.,  1940 

.   169 

528 

.   147 

169,  271,  790 

.   226 

1203 

.  1882 


TABLE  OF  CASES. 


XXXVII 


Errington  v.  Aynesley,  2  Br.  Ch.  Cas.  341, 

Essex,  The,  5  Chr.  Rob.  369,  .... 

Estrella,  The,  4  Wheat.  298,  .... 

Etches  V.  Aldan,  Man.  &  Ryl.  157,      .  72,  482,  1238, 

Etrusco,  The,  3  Chr.  Rob.  31,        . 

Europa,  The,  Edw.  Adm.  R.  342, 

Everard  v.  HoUingworth,  2  B.  &  P.  Ill,  n., 

Everett  v.  Desborough,  5  Bing.  503,  .  .  570,  653 

Everth  v.  Bell,  7  Taunt.  450 ;  IJ.  B.  Moore,  158, 

V.  Blackburne,  2  Stark.  66,      . 

V.  Hannam,  2  Marsh.  R.  72 ;  6  Taunt.  375, 

V.  Smith,  2  M.  &  S.  278, 

V.  Tunno,  1  B.  &  A.  142,  .... 

Ewer  V.  Washington  Ins.  Co.,  16  Pick.  502, 

Exall  V.  Partridge,  8  T.  R.  308,  .... 

Exchange,  The,  Edw.  Adm.  R.  39,  . 

Expedite,  The,  1  Chr.  Rob.  206, 

Eylesw.  Ellis,  4  Bing.  112,    .... 

Eyre  v.  Glover,  16  East,  218,      .  .  .317,  462, 

V.  Marine  Ins.  Co.,  6  Wharton,  247 ;  5  Watts  &  Serg 

5  Watts  &  Serg.  116, 


V.  Palsgrave,  2  Camp.  605, 


771 

.   278 

2103 

1981,  2021,  2125 

165 

.   247 

780 

,  893,  1055,  2026 

2061 

265 

2106 

1104, 1644 

.  246,  2122 

,  68,  1937,  2119 

1559 

830, 836 

223 

17 

1209,1243,  1831 

19,  120,  123, 

134,  144,  953 

.  123,  144,  953 

2103 


F. 


Fairlie  v.  Christie,  7  Taunt.  416, 

V.  Hastings,  10  Ves.  jun.  123, 

Falkner  v.  Ritchie,  2  M.  &  S.  290,    . 
Fall  D.  Chambers,  Mos.  193, 
Falmouth  v.  Roberts,  5  M.  &  W.  469, 
Fanny,  The,  1  Dod.  Adm.  R.  443, 
Fanny  and  Elmira,  The,  Edw.  Adm.  R.  117, 
Faris  v.  Newburyport  Ins.  Co.,  3  Mass.  476, 

r.  N.  Am.  Ins.  Co.,  1  Hill,  73,  . 

Farmer  v.  Russell,  1  B.  &  P.  296, 

V.  Legg,  7  T.  R.  186, 

Farmers'  Ins.  and  Loan  Co.  v.  Snyder,  16  Wend.  481, 

Farquharson  v.  Hunter,  1  Park,  Ins.  105,    . 

FaiTow  V.  Com.  Ins.  Co.,  18  Pick.  53,     . 

Faudel  v.  Phoenix  Ins.  Co.,  4  Serg.  &  Rawle,  29,     . 

Faugier  v.  Hallett,  2  Johns.  Cas.  233,     . 

Favorite,  The,  2  Chr.  Rob.  232,       . 

Fayle  v.  Bourdillon,  3  Taunt.  546, 

Feise  v.  Aguilar,  3  Taunt.  506, 

V.  Bell,  4  Taunt.  4, 

V.  Newnham,  16  East,  197, 

V.  Parkinson,  4  Taunt.  640, 

V.  Thompson,  1  Taunt.  121,    . 

V.  Waters,  2  Taunt.  248,  . 

V.  Wray,  3  East,  93,    . 

Felton  V.  Brooks,  4  Cushing's  R.  203,    . 
Fenno,  v.  Craig,  3  Y.  &  Col.  216, 
Fenton  i'.  Pearson,  15  East,  419, 
Fenwick  v.  Bell,  1  Car.  &  Kirw.  312, 

V.  Robinson,  Dans.  &  LI.  8  ;  3  Car.  &  P.  323, 

Ferguson  v.  Cappeau,  6  Har.  &  Johns.  394 
VOL.    I.  d 


112 

2086 

1071,  1531,  1662 

1933, 1939, 1973 

114 

.  819 

1578 

429,  439 

2036 

.  1908 

210 

.  72,  538,  873 

140 

.  1971 

1154 

.   1816,1817 

1719 

245,  248 

.  1183,1187,1195 

245,  248 
245 
554 
245 

246,  248 
197 

1847  a 

1938 

151 

2112 

.   1431 

2025 


XXXVIU 


TABLE  OF  CASES. 


Ferguson  v.  Harwood,  7  Cranch,  408, 
Ferguson  v.  Phoenix  Ins.  Co.,  5  Binn.  544, 
Fernandez  v.  Da  Costa,  Park,  Ins.  177, 
Ferris  v.  N.  Am.  F.  Ins.  Co.,  1  Hill,  73,    . 
Field  V.  Citizen's  Ins.  Co.,  11  Missouri,  50, 
Fierson  v.  Brenham,  5  La.  Ann.  R.  540,    . 
Fillis  V.  Brutton,  1  Park,  Ins.  414, 
Finney  v.  Fairhaven  Ins.  Co.,  5  Mete.  192, 
V.  New  Bedford  Com.  Ins.  Co.,  8  Mete.  348, 

—  V.  "Warren  Ins.  Co.,  1  Mete.  16, 


.      2048 
961 
764 
.  1956, 1974 
1126, 1703 
383 
619 
.     388, 1868 
122,  143,  380,  389, 
2173,  D 
588 
Fire  &  Mar.  Ins.  Co.  of  Wheeling  v.  Morrison,  11  Leigh,  355,  348,  2003 

Fireman's  Ins.  Co.  v.  Fitzhugh,  4  B.  Monroe,  160,      .  .         1312,  1431 

Fisher  V.  Ogle,  1  Camp.  418,         .....     636,2109 
Fisk  V.  Com.  Ins.  Co.,  18  La.  R.  77,  .  .  .  .  .       1431 

V.  Masterman,  8  M.  &  W.  165,         .  .  .      1837,  1838,  1838 

Fiske  I'.  N.  E.  Marine  Ins.  Co.,  15  Pick.  310,  546,  577,  621,  2076,  2159 

V.  Willard,  13  Mass.  379,         .  .  .  .  .  2053 

Fitzgerald  v.  Anderson.     See  Andeison  v.  Fitzgerald. 
V.  Pole.     See  Pole  v.  Fitzgerald. 


Fitzherbert  v.  Mather,  1  T.  R.  12, 
Fitzsimmons  v.  Newport  Ins.  Co.,  4  Cranch,  185, 
Flad  Oyen,  The,  1  Chr.  Rob.  135, 
Flanigan  v.  Washington  Ins.  Co.,  7  Penn.  307, 


529,  543,  549,  559,  564 

832,  2109 

.   2104,  2104 

221,  267,  712,1043,  2033 


—  V.  Parry,  3  Starkie,  64, 

—  V.  Poole,  Park,  89, 
V.  United  States  Bank,  8  Wheat.  338, 


Flindt  V.  Atkins,  3  Camp.  215, 
V.  Crockett,  5  Taunt.  674, 

V.  Le  Mesurier,  Marsh.  Ins.  107, 138 ;  Park 

V.  Ohio  Ins.  Co.,  8  Ohio  R.  505, 

V.  Scott,  5  Taunt.  674, 

V.  Waters,  15  East,  260, 

Flinn  V.  Ileadlam,  9  Barn.  &  Cr.  693, 

V.  Tobin,  1  Moody  &  Malk.  367, 

Flint  V.  Flemyng,  1  B.  &  Ad.  45 ;  1  LI.  &  W.  257, 
Flower  v.  Young,  3  Camp.  240, 
Foley  V.  Addenbroke,  4  Ad.  &  El.  179, 

V.  Moline,  5  Taunt.  430 ;  1  Marsh.  R.  117, 

Fomin  r.  Oswell,  3  Camp.  357, 

Fontaine  v.  Columbian  Ins.  Co.,  9  Johns.  29,    . 

V.  Phoenix  Ins.  Co.,  10  Johns.  58, 

11  Johns.  293, 

Forbes  V.  Aspinwall,  13  East,  323, 

V.  Church,  3  Johns.  Cases,  159, 

V.  Cowie,  1  Camp.  520, 

r.  The  Brig  Hannah,  Hopkins's  Ad.  R.  23, 

V.  Wilson,  Park,  Ins.  344,     . 

J'orrester  v.  Pigou,  3  Cainj).  380 ;  1  M.  &  S.  9, 
Forsliaw  v.  Chabcrt,  3  B.  &  H.  158;  6  J.  B.  Moore 
Forstcr  /".  Christie,  11  JOast,  205, 


Fleming  v.  Ins.  Co.,  12  Penn.  State  R.  (2  Jones,)  391,  2079,  2105,  2113, 

2122 

V.  Marine  Ins.  Co.,  3  Watts  &  S.  144 ;  4  Whart.  59,         2095,  2132 

r.  Smith,  1  House  of  Lords  Cases,  513,    .  .     1498,1623,1669 

Fletcher  v.  Com.  Ins.  Co.,  18  Pick.  419,  .  .  .  .       640 

u.Inglis,  2  B.  &  A.  315,  .  .  .     1097,1097,1097 

2097 

1328 

11 

2090 

248 

8th  ed.  563,     .  311 

24 

248 

681, 2030 

681, 1949 

.       553 

332,  471,  944 

.     2124 

1960 

.       615 

1886,  1898 

.     1232 

195,  703,  2152 

1524, 1535,  1539,  1577 

833,463,  1196,  1203,  1204 

992,  1819,  2085 

333 

1568,  1940 

720 

554,  554,  2052 

369,  .  113,  710 

1115 


TABLE   OF   CASES. 


XXXIX 


Fort  V.  Lee,  3  Taunt.  381,         .... 
Fortitude,  The  Ship,  3  Sumner,  228, 
Fortuna,  The,  5  Chr.  Rob.  27,  . 

1  Chr.  Rob.  212, 

3  Wheat.  245,     .... 

Fosdick  V.  Norwich  Mar.  Ins.  Co.,  3  Day,  108, 
Foster  v.  Alvez,  3  Ring.  N.  C  896, 

V.  Gardner,  American  Jurist,  January,  1834,  Vol 

Com.  3d  ed.  314, 

V.  Hoyt,  2  Johns.  Cases,  327,      . 

V.  Preston,  8  Cowen,  198,     . 

V.  United  States  Ins.  Co.,  1 1  Pick.  85,   . 

V.  Wilmer,  2  Strange,  1249, 

Fowk  V.  Pensack,  2  Lev.  153,    . 

Fowler  v.  iEtna  Ins.  Co.,  6  Cowen,  673;  7  Wend.  270, 

Fox  V.  Black,  Park  on  Insurance,  488, 

Foy  V.  Bell,  3  Taunt.  492, 


568,  585,  586,  621 

1524, 1566 

.       843 

.     226,  227 

.       810 

.   318, 1474 

.     1989 

XL  p.  21 ;  Kent's 

1027 

213,  1923 

1901 

386,  1827,  1828,  1852 

1001 

.       507 

866,873,  2119 

.     1000 


513 
FrancesofLeith,  The,  2  Dod.  Ad.  R.  420,       .  .  .       1568,2124 

8  Cranch,  335  ;  1  Gall.  445,  618,     159,  171,  260,  261, 

263,  794,  797,  1755a 
Francis  v.  Ocean  Ins.  Co.,  6  Cowen,  404,      757,  913,  1060,  1154,  1803,  2052, 

2057,  2103,  2104,  2109 
Franklin  Ins.  Co.  v.  Drake,  2  B.  Monroe,  51,    .  .  1,  350,  488,  881 

• V.  Hamill,  6  Gill's  R.,  Court  of  Appeals,  Maryland,  87,  886, 

1953,  2173,  n. 

V.  Hewitt,  3  B.  Monroe,  239,       .  .  .     16,  1937 

V.  Findley,  6  Whart.  483,      . 

V.  Lord,  4  Mason,  248,     . 

Frau  Margaretha,  The,  6  Chr.  Rob.  92, 

Frazer  v.  Hopkins,  2  Taunt.  5 ;  2  Camp.  1 70, 

Frear  v.  Evertson,  20  Johns.  142, 

Freard  v.  Dawson,  Marsh.  Ins.  176, 

Frederick,  The,  5  Chr.  Rob.  8,  ... 

Frederick  Molke,  The,  1  Chr.  Rob.  86,       . 

Freedom,  The,  5  Chr.  Rob.  212, 

Freeland  r.  Glover,  7  East,  457 ;  6  Esp.  14 ;  3  Smith,  424, 

V.  Walker,  4  Taunt.  478,  . 

Freeman  v.  Baker,  5  Car.  &  Payne,  475, 

V.  East  India  Co.,  5  B.  &  Ad.  617, 

V.  Taylor,  8  Bing.  124, 


French  v.  Backhouse,  5  Burr.  2727, 

r.  Connelly,  2  Ans.  454, 

V.  Hope  Ins.  Co.,  16  Pick.  397,       . 

V.  Reed,  6  Binn.  308,     .... 

Friedlander  v.  London  Assurance  Co.,  4  B.  &  Ad.  193, 
Friendschaft,  The,  (Winn,  Claimant,)  3  Wheat.  14,     . 

(Moreira,  Claimant,)  4  Wheat.  105, 

Friendship,  The,  6  Chr.  Rob.  420,         . 

Friere  v.  Woodhouse,  1  Holt's  N.  P.  Cases,  572,    . 

Frierson  v.  Brenham,  5  La.  Annual  R.  540, 

Frith  V.  Barker,  2  Johns.  327, 

Frost  V.  Saratoga  Mut.  Fire  Ins.  Co.,  5  Denio,  154, 

Frothingham  v.  Prince,  3  Mass.  563, 

Fuller  V.  Alexander,  1  Brevard,  149,     . 

V.  Boston  Mut.  Fire  Ins.  Co.,  4  Mete.  206,  . 

V.  Kennebec  Mut.  Ins.  Co.,  31  Maine,  (1  Redding)  R.  325, 

V.  McCall,  1  Yeates,  464, 

V.  Wheelock,  10  Pick.  135,  .... 


.       193 

858 

.       272 

2124 

81,  2044,  2060 

2061 

.       169 

826,  827)  830 

.       227 

559,  576,  659,  665 

246 

.     2100 

1625 

.       690 

1852,  1854,  2052 

.     1938 

316 

1863, 1888 

2056 

161,  165 

240 

825,  825 

.      604,  605 

177 

67 

872a,  904 

1719,  1719,  1721 

1947,  1953 

1214 

1524,  1801 

.     1679 

2053 


xl  TABLE   OF   CASES. 

Fulton  V.  Lancaster  Ins.  Co.,  7  Ohio,  Part  II.  p.  5,       .         '   .  .     1049 

Furneaiix  v.  Bradley,  Marsh.  Ins.  684  ;  Park,  257,  .  ,1129,  1148,  1555 

Furnell  v.  Thomas,  5  Bing.  188,  .  .  .  .  .2155 

Furnis  v.  Gilchrist,  1  Sandford,  53,  ....     510,  523 

Furtado  v.  Eodgers,  3  Bos.  &  Pull.  191,  .  .  .  149,  149 

G.  • 

Gabay  i'.  Lloyd,  5  D.  &  R.  641 ;  3  B.  &  C.  793,        140,  140,  141,  1145,  1162 
Gage  V.  Bulkeley,  Ridgeway,  266,  .....  2106 

Gahn  V.  Broome,  1  Johns.  Cases,  120,   .  .  .  .       1229,  1235 

Gairdner  v.  Senhouse,  3  Taunt.  16,  ...  1012,  1014 

Gale  V.  Laurie,  7  Dowl.  &  Ryl.  711,      .  .  .  .  .     2006 

V.  Mackill,  Marsh.  Ins.  659  ;  Park,  Ins.  589,  .  .  .  1834 

Gall  V.  Comber,  7  Taunt.  558,   ......     1853 

Gallini  v.  Laborie,  5  T.  R.  242,        .  .  .  .  .  215 

Galloway  v.  Morris,  3  Yeates,  445,         .  .  .  .  .       '212 

Gamba  v.  Le  Mesurier,  4  East,  407,  .  .  .  149,  149,  915 

Gammon  v.  Beverly,  1  J.  B.  Moore,  563;  8  Taunt.  119,        1815,  2011,  2021 
Gardere  v.  Columbian  Ins.  Co.,  7  Johns.  514,  .         845,  1057, 1733,  2050 

Gardiner  1-.  Collins,  2  Peters's  Sup.  Ct.  R.  89,  .  .  .  .     2106 

1-.  Croesdale,  1  W.  Bl.  198;  2Burr.  904,  .  .  2023 

V.  Lachlan,  4  Mylne  &  Craig,  129,     .  .  .  .95 

v.  Salvador,  1  Moody  &  Rob.  118,  .  .  1579,1625 

?;.  Smith,  1  Johns.  Cases,  141,  .      268,972,1608,1732,1735 

Gardner  v.  Columbian  Ins.  Co.  of  Alexandria,  2  Cranch's  R.  Dist.  Ct.  U.  S. 
473,     .......  928 

V.  Ship  New  Jersey,  1  Peters's  Ad.  R.  223,    .  .  .289 

V.  Columbian  Ins.  Co.,  2  Cranch,  C.  C.  R.  550,    .  1183,  1671 

GarrelU.  Hanna,  5  Har.  &  Johns.  412,  ....     1967 

Garrells  V.  Kensington,  8  T.  R.  230,  .  .  799,818,822,2109 

Garrett  v.  Barclay,  5  Mann.  &  Grang.  643,  n.,  ...       895 

Garrigues  t'.  Coxe,  1  Binn.  592,       ....       699,932,1100 
Gates  V.  Madison  County  Mut.  Ins.  Co.,  2  Comst.  43  ;  1  Selden,  469  ;  3  Barb. 
73,  .  .  .    638,  866a,  872a,  872a,  872a,  904,  1096 

Gazzam  v.  Ohio  Ins..  Co.,  Wright's  (Ohio)  R.  202,  .  .     982,  987 

V.  Cincinnati  Ins.  Co.,  6  Hammond's  (Ohio)  R.  73,     .  .     1429 

Gcach  V.  Ingall,  14  Mees.  &  W.  95,  ....     648,  899 

Gelston  V.  Hoyt,  13  Johns,  141,  561 ;  15  id.  221;  3  Wheat.  246,         195,  224 
General  Hamilton,  The,  6  Chr.  Rob.  61,  .  .  .  .830 

Generallnt.  Ins.  Co.  I).  Ruggles,  12  Wheat.  408,  .  .         549,564 

General  Mutual  Ins.  Co.  v.  Sherwood,  14  Howard's  R.  Supr.  Ct.  U.  S.,  352, 

1096,  1137  a,  1416 
George  v.  Claggett,  7  T.  R.  359,  .  .  .  .  .  1916 

Georgia  Ins.  and  Trust  Co.  v.  Dawson,  2  Gill,  365,  .  .  .         1049 

Gernon  r.  Royal  Exch.  Ass.  Co.,  Holt,  49  ;  6   Taunt.  383 ;  2  Marsh.  R.  88, 

1606,  1669,  1673,  1767 
Geycr  v.  Aguilar,  7  T.  R.  681,  .  .  .  .  .    2109 

Gibson  u.  ]\Iair,  1  Marsh.  R.  39,      .....    269,2109 

I).  Phil.  Ins.  Co.,  1  Bin.  405,      .  .  1169,  1233,  1249,  1484  a 

V.  Servi(;e,  15  Taunt.  433  ;  1  Marsh.  R.  119,         .  .      210,  267 

V.  Small.    Sec  Small  v.  Gihuon. 

V.  Winter,  5  Barn.  &  Adolph.  96,     .  .      413,  2060,  2160,  2169 

Gilbert  i;.  N.  Am.  F.  Ins.  Co.,  23  Wend.  43,       .  .  .  .    1805 

r.  Rcdnhaw,  Mar.sh.  Ins.  208  ;  Park,  30,       .  .  .  999 

Giles  V.  Cynthia,  2  Pet.  Ad.  208,  .....    1719 

V.  Eagle  Ins.  Co.,  2  Mete.  140,  ,         1290,  1329,  1340,  1424,  1429 

Gilfert  u.  Hallett,  2  Johns.  Cas.  296,      ....       1002,1608 


TABLE   OF  CASES.  xli 

GIUv.  Dunlop,  7Taunt.  193, 217,230 

V.  Hinckley,  1  J.  B.  Moore,  79, 1989 

Gillespie  v.  Moore,  2  Johns.  Ch.  593,        .  .  .  .  1936 

Gist  V.  Mason,  1  T.  R.  84, 148,  223 

Gladstone  v.  Clay,  1  M.  &  S.  418, 940 

V.  King,  1  M.  &  S.  35,  .  .  .  .  549,  564 

Glaser  v.  Cowie,  1  Maule  &  Selwyn,  52,    .  .  .       915,  1886,  1894 

Glass  V.  Sloop  Betsey,  3  Dallas,  16,      .  .  .  .  .        200 

Glen  V.  Lewis,  17  Eng.  Jur.  842 ;  8  Eng.  Exch.  R  607 ;  20  Eng.  Law  &  Eq. 
R.  (Press  of  Little,  Brown  &  Co.,)  364,    .  .  .883 

Glendale  Woollen  Co.  v.  Protection  Ins.  Co.,  21  Conn.  R.  19,    527,  638,  639, 

642,883,  2116 
Glennie  v.  Edmunds,  4  Taunt.  775,  .  .  .  .      903,  2044 

V.  London  Ass.  Co.,  2  Maule  &  Selwyn,  371,  .  1766,  1767 

Glidden  v.  Marine  Ins.  Co.,  1  Sumn.  232,  .  . '  .  1040 

Gloire,  La,  5  Chr.  Rob.  192,  .  .  .  .  .254 

Glover  v.  Black,  1  W.  Bl.  422  ;  3  Burr.  1394,      .  .  .        300,  427 

Glynn  v.  Locke,  3  Drury  &  Warren,  Ch.  11,  .  .  354,  1978 

Goddart  v.  Garrett,  2  Vernon,  269,  .  .  .  .  .211 

Godin  V.  Lond.  Ass.  Co.,  1  Burr.  489  ;  Kenyon,  244  ;  1  W.  Bl.  103,     87,  311, 

361,  373,  1251,  1838,  1915 
Godsall  u.  Boldero,  9  East,  72,  ....  1515,1729 

Goede  Hoop,  The,  Edw.  Adm.  R.  327,     ....        246,  248 
Goicoechea  v.  Louisiana  State  Ins.  Co.,  6  Martin,  N.  S.  51,  .  .         1154 

Goix  V.  Knox,  1  Johns.  Cas.  337,  .  .  .         911,  1126,  2142 

V.  Low,  1  Johns.  Cas.  341,  .  .  120,  757,  802,  1048,  2109 

Goldschmidt  r.  Lyon,  4  Taunt.  534,  ....  1924 

y.  Whitmore,  3  Taunt.  508,        .  .  1068,  1074,  2140 

Goldsmidt  u.  Gillies,  4  Taunt.  803,  .  .  .        1203,1456,1713 

Goldstone  v.  Osborn,  2  C.  &  P.  550,  .  .  .  890,  1941 

Good  V.  Eliot,  5  T.  R.  693,  .  .  .  .  .  .211 

Goodson  V.  Brook,  4  Camp.  163,         .  .  .  .  .1874 

Goold  V.  Shaw,  1  Johns.  Cas.  293  ;  2  id.  442,       .  .  .  1134 

V.  United  Ins.  Co.,  2  Caines,  73,  .  .  .  788,  798 

Gordon  I?.  Am.  Ins.  Co.,  4  Denio,  360,       ....        341,944 

V.  Bowne,  2  Johns.  150,  .  .  .  1099,  1496,  2022 

V.  Church,  2  Caines,  299,  .  .  .  .  .  .413 

V.  Mass.  F.  &  M.  Ins.  Co.,  2  Pick.  249,      287,  399,  1497,  1505,  1516, 

1569,  1574,  1577,  1589,  1623,  2116,  2123 

v.Morlay,  2  Strange,  1265,  ....  780 

•  u.  Rimmington,  1  Camp.  123,    .  .  .  1095,1097,1115 

r.  Vaughan,  12  East,  302,  n.,  ....      232,247 

Gorham  v.  Sweeting,  2  Saund.  207,  379,  .  .  .        2023,  2028 

Goss  V.  Withers,  2  Burr.  683,  .  .  .       1492,  1531,  1532,  1621 

Gould  V.  Citizens'  Ins.  Co.,  13  Missouri  R.  (by  Robards,)  524,  .      1707 

V.  Gould,  4  N.  Hamp.  R.  173,  .  .  .  .  68 

V.  Oliver,  4  Bing.  N.  C.  134;  2  Scott,  252  ;  5  id.  445 ;  2  M.  &  Gr., 

208,     .....  137,137,460,1282 

Gourdon  v.  Ins.  Co.  of  N.  America,  1  Binn.  430,  n.;  3  Yeates,  327,       77,  82 
Gove  V.  Deblois,  1  T.  Reports,  112,  .  .  .  .  1853 

Gouverneur  v.  United  Ins.  Co.,  1  Caines,  592,  .  .  .     1023 

Goyon  v.  Pleasants,  3  Wash.  C.  C.  R.  241,  .  .  .  1022 

Graaf  Bernstoff,  The,  3  Chr.  Rob.  109,  .  .  •  .285 

Grade  v.  Bowne,  2  Caines,  30,       .  .  .  .  .  1199 

V.  Marine  Ins.  Co.,  8  Cranch,  75,  .  .  .  144,  971 

V.  Maryland  Ins.  Co.,  8  Cranch,  84,  .  .  .  1773,  1774 

V.  New  York  Ins.  Co.,  8  Johns.  237,     1493,  1494,  1507,  1675,  1723, 


d* 


1724 


xlii  TABLE   OF   CASES. 

Gracie  v.  New  York  Ins.  Co.,  13  Johns.  161,  ....       1154 
Graham  v.  Barras,  3  Nevile  &  Manning,  125,      .  .  .  772 

?;.  Com.  Ins.  Co.,  11  Johns.  352,  .  .  .  .1023 

V.  Penn.  Ins.  Co.,  2  Wash.  113,    .  .  .     1154,  1158,  2127 

V.  Eussell,  5  Maule  &  Selwyn,  498  ;  2  Marsh.  R.  561 ;  3  Price,  227, 

903,  2044 
Granger  v.  Howard  Ins.  Co.,  5  Wend.  200,     .  .  .         2015,  2019 

Gran  Para,  The,  7  Wheat.  471 ;  6  id.  16,  n.,        ...  194 

Grant  y.  Delacour,  1  Taunt.  466,  474,  .  .  .  130,140 

V.  Howard  Ins.  Co.,  5  Hill,  10,        .  882,975,1036,1950 

V.  King,  4  Esp.  175,     .  .  .  .    935,  1002,  1002,  1950 

Parkinson,  Park,  97,  107,  133,279;  1  Marsh.  Ins.  97;  3  B.  &  P. 

85  n. ;  6  T.  R.  n.  483,  .  .  .  .       7,317,2127 

V.  Paxton,  1  Taunt.  463,     ....  140,  447,  942 

V.  Royal  Exch.  Ass.  Co.,  5  Maule  &  Selwyn,  439,         .  .      2044 

Gratitudlne,  The,  3  Chr.  Rob.  240,  .  .         1357,  1360,  1623,  1625 

Graves  v.  Boston  Mar.  Ins.  Co.,  2  Cranch,  419,         120,  380,  391,  417,  1937, 

2021 

V.  Marine  Ins.  Co.,  2  Caines,  339,  117,  939,  1819,  1844,  1937 

Gray  V.  Murray,  3  Johns.  Ch.  67,  ....  1881 

V.  Sims,  3  Wash.  C.  C.  R.  276,  .  .  210,  519,  906,  909 

u.  Thorndike,  Mass.  1817,  MS.,      ....  1030 

V.  Walm,  2  Serg.  &  Rawle,  229,  .       1313,  1318,  1369,  1379,  1383 

Greely  v.  Tremont  Ins.  Co.,  Sup.  Jud.  Ct.  Mass.  Suffolk,  March,  1852,     1545 
Green  v.  Brown,  2  Strange,  1199,  .  .  .     1099,  1496,  2139 

V.  Elmslie,  Peake,  212,  .  .  1025,  1136,  2022,  2140 

?;.  Farmer,  4  Burr.  2214,      .....  1912 

V.  Merchants'  Ins.  Co.,  10  Pick.  402,         561,  604,  606,  610.  612,  2100 

■ V.  Royal  Exch.  Ass.  Co.,  1  Marsh.  R.  447 ;  6  Taunt.  68,      1500,  1569, 

1583, 1644,  1725 

V.  Young,  2  Salk.  444  ;  2  Ld.  Raym.  840,         .  .         1109,  1111 

Greery  v.  Holley,  14  Wendell's  R.  35,      .  .  .  .  985 

Gregory  v.  Christie,  3  Dougl.  419,      .  .  .  .  140,  427,  1005 

Gregson  v.  Gilbert,  Doug.  232,      ....  1051,  2022 

Grieve  v.  Young,  Millar  on  Insurance,  65,      .  .  .  .         561 

Griffith  V.  Ins.  Co.  of  N.  Am.,  5  Binn.  464,  ...  808 

Griffiths  r.  Young,  12  East,  513,  .....  14 

Grigg  V.  Scott,  4  Camp.  339  ;  Holt,  129,  .  .  .       151,  245 

Griggs  V.  Austin,  3  Pick.  20,  .....  340 

Grim  u.  Phoenix  Ins.  Co.,  13  Johns.  451,  .  733,1049,1061,1096 

Griswold  v.  Nat.  Ins.  Co.,  3  Cowcn,  96,  .  .  .     849,  854,  2035 

V.  N.  Y.  Ins.  Co.,  1  Johns.  205  ;  3  id.  321,     1386,  1416, 1451,  1633, 

1634,  1641, 1692,  2003 

V.  Waddington,  15  Johns.  57  ;  16  id.  438,     .  .147,  150,  228 

(ironing  v.  Crockett,  3  Campbell,  83,         .  .  .  .  246 

Groussett  v.  Sea  Ins.  Co.,  24  Wendell's  R.  219,  .  .  .        955 

Grove  V.  Dul)ois,  1  T.  R.  112,        .  .  .  .  .     507,  2044 

(iuerlain  v.  Col.  Ins.  Co.,  7  Johns.  527,  .  .  .68,  1660,  1773 

Guibert  v.  Hcadshaw,  Park  on  Insurance,  454,      .  .  .  1000 

Gutc  Erwartung,  The,  6  Chr.  Rob.  182,  .  .  .  .830 

Gute  Gcscllschaft  Michael,  The,  4  Chr.  Rob.  94,  .  .  .271 

H. 

Haabet,  The,  2  Chr.  Rob.  1  74, 272 

Hacker  r.  Young,  6  New  Ilamp.  R.  95,  ...  .     2124 

Hackctt  V.  Martin,  8  (ircenl.  7  7,  .  81,  410,  2044,  2055,  2060,  2170 

Iladdow  V.  Parry,  3  Taunt.  303,      .  .  .  .  .  2126 


TABLE    OF   CASES. 


xliii 


Hadkinson  r.  Robinson,  3  Bos.  &  Pull.  388,       ....     1115 
Haff  v.'Marine  Ins.  Co.,  8  Johns.  163;  4  id.  132;  Anthon's  Cases,  N.  P.  14; 

849, 1802 
Hagedorn  v.  Bazett,  2  Maule  v.  Selvvyn,  100,  .  .  .     234,  245 

V.  Bell,  1  Maule  &  Selwyn,  450,        .  .  .  163,  238 

y.  Oliverson,  2  Maule  &  Selwyn,  485,     .  .        388,389,1965 

V.  Reid,  3  Camp.  377  ;  1  M.  &  S.  567,  .      151,  247,  248,  2098 

V.  Whitmore,  1  Starkie's  N.  P.  Cases,  157,         .  .  2022 

Hahn  v.  Corbett,  2  Bing.  205 ;  9  J.  B.  Moore,  390,      1136,  1137,  1137,  1162 
Haigh  V.  De  la  Cour,  3  Camp.  319,  .  .  .  1182,  1816 

Haines  u.  Busk,  5  Taunt.  521,   .  .  .  .  •  .217 

Hale  u.  Mercantile  Ins.  Co.,  6  Pick.  R.  172,  .  .  .  1010 

V.  Washington  Ins.  Co.,  2  Story's  R.  176,    1137,  1416,  1419,  1436,  1940 

Halford  v.  Kymer,  10  Barn.  &  Cres.  724,  .  .  .  .356 

Hall  V.  Brown,  2  Dow,  367,  .  .  .         '    .  .     332,  937 

V.  Cazanove,  4  East,  477,  .  .  .  .  29,  128 

V.  Franklin  Ins.  Co.,  9  Pick.  466,        .  •      1020,  1548,  1571,  1580 

V.  Molineux,  cited  6  East,  385,     ,.  .  .  .  .430 

V.  Ocean  Ins.  Co.,  21  Pick.  472,   465,  1105,  1429, 1539, 1553,  2112,  2152 

Hallet  V.  Columbian  Ins.  Co.,  8  Johns.  272,  .  .  .  1083 

V.  Peyton,  1  Caines's  Cases,  28,  ....     1662 

V.  Phoenix  Ins.  Co.,  2  Wash.  C.  C.  R.  279,  .  .  2147 

Hallett  V.  Dowdall,  Eng.  Law  &  Eq.  R.  (Press  of  Little,  Brown  &  Co.)  347; 

S.  C,  21  Eng.  Law  J.  R.  (n.  s.)  Q.  B.  98,    1475  a,  1741a,  1795  a, 

1939,  1957,  2173,  n. 
V.  Jenks,  3  Cranch,  210, 


Halliday  v.  Martinett,  20  Johns.  168,  . 

Hamilton  v.  Lycoming  Mut.  Ins.  Co.,  5  Penn.  339, 

V.  Mendes,  2  Burr.  1198  ;  1  W.  Bl.  276, 

V.  Shedden,  3  Mees.  &  Wels.  49,      . 

Hammond  v.  Reid,  4  Barn.  &  Aid.  72, 

Hammonds  v.  Barclay,  2  East,  227, 

Hampton  v.  Brig  Thaddeus,  4  Martin,  N.  S.  582, 

Hancox  v.  Fishing  Ins.  Co.,  3  Sumner,  132,     . 

Hand  v.  Baynes,  4  Whart.  R.  204, 

Harding  v.  Carter,  Marsh.  Ins.  303  ;  Park,  Ins.  5, 

Hardy  v.  Innes,  6  J.  B.  Moore,  574, 

Hare,  The,  1  Acton's  Ad.  R.  252,        . 

Hare  v.  Groves,  3  Ans.  687, 

V.  Travis,  7  B.  &  C.  14,  . 

Harley  v.  Milward,  1  Jones  &  Carey's  (Ireland)  R.  224, 
Harman  v.  Kingston,  3  Camp.  150, 

r.  Vanhatton,  2  Vernon,  717, 

i\  Vaux,  3  Camp.  429, 

Harmony,  The,  2  Chr.  Rob.  322, 
Harratt  v.  Wise,  9  Barn.  &  Cres.  712, 
Hai-rington  v.  Wheeler,  4  Ves.  686,     , 

V.  Halkeld,  Park,  8th  ed.  639 

Harris  v.  Eagle  Fire  Ins.  Co.,  5  Johns.  368, 

V.  Nichols,  5  Mumford's  R.  483, 

V.  Ohio  Ins.  Co.,  5  Hammond,  461, 

V.  Watson,  Peake's  N.  P.  Cases,  72, 

Harrison  /•.  Douglas,  3  Ad.  &  El.  396 ;  5  N.  &  M.  180, 

V.  M'Conkey,  1  Maryland  Chan.  Dec.  34, 

Hart  V.  Delaware  Ins.  Co.,  2  Wash.  C.  C.  R.  346, 

r.  Western  Railroad  Corporation,  13  Mete.  99, 

Hartford  i;.  Jones,  1  Ld.  Raym.  343,    . 
1',  Maynard,  Park,  Ins.  33, 


229 

.  2098 

.  14,  16,  17 

1183,  1531, 1621,  1704 

.  1002 

1007 

.  1915 

1282 

182 

983 

1892,  1904,  1992,  2071 

1457,  1817 

'.   830 

402 

936,  937,  1001,  1149,  1951 

1222 

438,  1193,  2030,  2113 

300,  988 

1758 

153,  155,  156,  157 

1051 

771 

.  981, 1010 

68,  1180 

132 

.   881 

1304 

761,  2061 

.   79,  1939 

334,471,  1557 

1711 

.  1717 

1106 


xliv 


TABLE   OF   CASES. 


Hartley  v.  Buggin,  3  Doug.  39, 

Harvey  v.  Turner,  4  Rawle,  223,  . 

Hassam  v.  St.  Louis  Perpetual  Ins.  Co.,  La.  Sup.  Ct.,  1852, 

Hastie  v.  Depeyster,  3  Gaines's  R.  190, 

Hatch  r.  Dennis,  1  Fairfield,  244, 

V.  Smith,  5  Mass.  53, 

r.  Taylor,  10  New  Hamp.  R.  538, 


Haughton  v.  Ewbank,  4  Camp.  88, 
Havelock  v.  Hancill,  3  T.  R.  277, 

V.  Rockwood,  8  T.  R.  268, 

Haven  v.  Gray,  12  Mass.  71,  . 

V.  Holland,  2  Mason,  230, 

Haxall's  Ex'rs  v.  Shippen,  10  Leigh,  437, 

Hay  V.  Le  Neve,  2  Shaw's  Scotch  Appeal  Cases,  395  ; 

Abbott  on  Shipping,  7th  ed.,  230,  n., 
Hayman  v.  Moulton,  5  Esp.  65, 
Hay  ward  v.  Blake,  12  Mass.  176,  . 
Haywood  v.  Rogers,  4  East,  590, 
Hazard  ?'.  New  England  Mar.  Ins.  Co.,  8  Peters's  Sup 

218,     ..... 
Head  v.  Diggon,  3  Mann.  &  Ryl.  97,    . 

V.  Providence  Ins.  Co.,  2  Cranch,  167, 

Headley  v.  Clark,  8  T.  R.  259, 
Hearne  v.  Edmunds,  1  Brod.  &  Bing.  388, 
Heath  v.  Franklin  Ins.  Co.,  1  Cushing's  R.  257, 
Heckenrath  v.  American  Mut.  Ins.  Co.,  1  Barb.  363, 
Hedberg  v.  Pearson,  1  Holt,  349;  7  Taunt.  154,  . 
Helena,  The,  4  Chr.  Rob.  3,    . 
Hemmenway  v.  Bradford,  14  Mass.  121, 
V.  Eaton,  13  Mass.  108, 


1, 


Henchman  v.  Offley,  8  T.  R.  15  n. ;  3  Doug.  1 
Henderson  v.  Hinde,  1  Taunt.  250, 
Hendricks  v.  Commercial  Ins.  Co.,  8  Johns.  R 
Henkle  v.  Royal  Exch.  Ass.  Co.,  1  Ves.  Sen.  317, 
HenneU.  Perry,  5  T.  R.  117, 
Hennessy,  In  re,  2  Drury  &  Warren,  555, 
Henrick  and  Maria,  The,  1  Chr.  Rob.  146, 
Henrickson  v.  Margetson,  2  East,  549,  n., 
Henricus,  The,  3  Chr.  Rob.  159,  n., 
Henrietta,  The,  1  Dod.  Ad.  R.  168,     . 
Henry  v.  Adey,  3  East,  221 ;  4  Esp.  228,  . 

V.  Risk,  1  Dall.  265,       . 

V.  Staniforth,  4  Gamp.  270, 

Henry  Ewbank,  The  Ship,  1  Sumner,  400, 
Ilenshaw  i'.  Marine  Ins.  Co.,  2  Kains,  274, 

V.  Pieasance,  1  W.  Bl.  1174, 

Hentig  V.  Staniforth,  5  M.  &  S.  122, 
Herbert  v.  Champion,  1  Gamp.  134,  276,  n., 

V.  Ilalltitt,  3  Johns.  Cases,  93, 

Herman,  The  Shij),  4  Chr.  Rob.  228,  . 
Herman  v.  I^onisiana  State  Ins.  Co.,  7  La.  R. 
Hermann  v.  Western  M.  &  F.  Ins.  Co.,  15  La. 

Heme  v.  Hay,  6  Mann.  Grang.  &  Scott,  414, 
Hcrstledcr,  The,  1  Chr.  Rob.  114, 
Ilesclton  V.  Alhiutt,  1  M.  &  S.  46, 
Hewitt  V.  Flexney,  Beawcs'a  Lex.  Merc.  308, 


979,  983,  1002 

1900,  1901 

.  1319 

.  1129,1506,2145 

81 

265 

.  1880 

.  1872,  2017,  2114 

770,  1075 
1336 

441,  1198 

1029 

104,  349,  1978 

iHagg.  Ad.  R.  328,n.', 

1420 

1574,  1583 

253 

601 

Ct.  R.  557;  1  Sumner, 

548, 566,  731,  1101 

17 

\      .    11,  109 

.  1650 

1768 

486,487,  1812,  1813 

404,1751 

1767,1773 

.  2104 

1847 

67,1179 

Bl.  345,  n.,  .   438 

.  210,  1049 

771,  1820 
147,  994,  1844,  1937 

195 

.   95,  96,  1978 

826,  828,  829,  834 

317 

842 

.   247 

2050 

67 

1846 

.  1027 

.  1001,  1328,  1453 

.  2105 

1846 

1815,  1816,  2151 

1631, 1633, 1634,  1641 

814,  814 

502,      .      .     1973 

,  R.  (by  Curry)  517,  135,137, 

139,  987,  1002 

.  1538 

240 

993,  1001,  1001,  1005 

1815 


35 ;  2  H 


11 


1446, 


TABLE   OF   CASES.  xlv 

Hewison  f.  Guthrie,  2  Bingham's  N.  C.  755,  ....  1919 
Heyligcr  I'.  N.  y.  Firemen's  Ins.  Co.,  11  Johns.  85,  .  1334,1392 

Heyman  v.  Parish,  2  Camp.  149,  ....        1074,  2022 

Hibbert  u.  Carter,  1  T.  R.  745,       ....      286,2123,2126 

V.  Halliday,  2  Taunt.  428,         .  .  .  ,  .1030 

V.  Martin,  1  Campbell,  538 ;  Park,  8th  ed.  472,  409,  720,  2021 

V.  Pigou,  2  Park,  498 ;  3  Doug.  224,         ...  780 

Hicks  V.  Fitzsimmons,  1  Wash.  C.  C.  R.  279,  .  .  .       2052 

Higgins  ?;.  Livermore,  14  Mass.  106,  ....       767,802 

V.  Sargent,  2  B.  &  C.  348  ;  3  D.  &  R.  618,     .  .  .       2147 

Higginson  v.  Dall.  13  Mass.  96,  66,  133,  286,  368,  426,  1262,  1505,  1516, 

1715,  2116 

V.  Pomeroy,  11  Mass.  104,        .  .  .     1098,1131,1154 

Hill  f.  Barclay,  18  Ves.jun.  63,  .....         771 

V.  Patten,  8  East,  373,  .  .  .  .  436,  463,  497 

V.  Secretan,  1  Bos.  &  Pull.  315,    .....  291 

Hillier  v.  Alleghana  Ins.  Co.,  3  Pennsylvania,  470,  .       1098,  1098,  1129 

Hills  V.  London  Ass.  Co.,  5  Mecs.  &  Wels.  569,         .  .  1773,  1777 

Himely  v.  S.  Car.  Ins.  Co.,  1  S.  Car.  R.  154,       .  ,  554,  556,  605 

V.  Stewart,  1  Brev.  209,        .  .  .  553,559,560,1048 

Hinde  v.  Vattier,  5  Pet.  Sup.  Ct.  R.  398,  .  .  .  .2110 

Hiram,  The,  8  Cranch,  444 ;  1  Wheat.  440,  ...  253 

Hiscocks  I'.  Hiscocks,  5  Mees.  &  Wels.  363,        .  .  .  .126 

Hiscox  V.  Barrett,  16  East,  145,         ....  392,  2021 

Hobart  v.  Drogan,  10  Pet.  Sup.  Ct.  R.  108  ;  2  Pet.  Adm.  R.  186,  n.,        1719 

V.  Norton,  8  Pick.  159,  .....  1001 

Hobbs  y.  Hannam,  3  Campbell,  93,  ....  325,1083 
Hoby  V.  Roebuck,  7  Taunt.  157  ;  2  Marsh.  R.  433,  .  .  14 

Hockin  v.  Cooke,  4  T.  R.  314,  .....         67 

Hodgson  V.  Blackiston,  Park,  Ins.,  8th  ed.  400,  n. ;  Marsh.  Ins.,  2d  ed.  600, 

1497 

V.  Glover,  6  East,  316  ;  3  Campbell,  277,  .  7,  317,  1209,  1655 

f.  Ins.  (yO.,  2  Louisiana  R.  341,         ....       1948 

V.  Malcolm,  5  Bos.  &  Pull.  336,    ....  1049,  2022 

V.  Marine  Ins.  Co.,  1  Cranch  C.  C.  R.  460,  .  .        2052 

V.  Marine  Ins.  Co.  of  Alexandria,  5  Cranch,  100,  .     627,  1183 

V.  Mississippi  Ins.  Co.,  2  La.  R.  341,       .  .  588,  944,  1948 

V.  Richardson,  3  Burr.  1477  ;  1  Wm.  Bl.  463,  .      527,  580,  939 

Hoe  V.  Mason,  Wash.  R.  (Virginia)  107,  ,  .  .  ,571 
Hoffman  v.  Marshall,  2  Bingham's  N.  C.  383,  .  ,  .1759 
V.  Western  F.  &  M.  Ins.  Co.,  1  La.  Ann.  R.  216,     888,  1484,  1805, 

2144,  2154 
Hoffnung,  The,  (Berens,)  2  Chr.  Rob.  162,         .  .  .         247,  837 

(Smidt,)  6  Chr.  Rob.  112,    .  .  •  .  829 

(Hardrath,)  6  Chr.  Rob.  383,     ,  .  .  ,261 

Hogan  V.  Del.  Ins.  Co.,  1  Wash.  C.  C.  R.  419,         117,  120,  133,  1253,  1937, 

1937 
Hogg  V.  Gouldney,  Beawes's  Lex.  Merc.  310  ;  Park,  Ins.  193,         .         1815 

V.  Horner,  Park  on  Insurance,  444,  ,  .  ,    1001,  1008 

Hoit  u.  Hodge,  6  N.  Hampshire  R.  104,         ....  211 

Holbrook  v.  Brown,  2  Mass.  280,  .  .  ,  .       456,  462 

Holdworth  v.  Wise,  7  B.  &  C,  794,        731,  733,  735,  1049,  1529,  1531,  1534, 

1541, 1542, 1594, 1704 
Holland  v.  Hall,  1  B.  &  Aid.  53,  ...  ,         21 7,  231 

V.  Smith,  6  Esp.  11,  ....  .    388,  397 

Hollingworth  v.  Brodrick,  7  Ad.  &  Ellis,  40,       .  .    727,  729,  731,  2032 

Holly  V.  Huggeford,  8  Pick.  73,        .  ,  .  .  .1917 


Xlvi  TABLE   OF   CASES. 

Holman  r.  Johnson,  Cowper,  341,  .....     269 

Holmes  v.  Charlestown  Mut.  F.  Ins.  Co.,  10  Mete.  211,       122,  130,  233,  494, 

866,  877,  877,  2065 

• V.  Unit.  Ins.  Co.,  2  Johns.  Cas.  329,     .  .     391,  408,  1829,  1852 

Holtzapfiel  t;.  Baker,  18  Ves.  115,  ....  402 

Homer  v.  Dorr,  10  Mass.  26,    .  .  .  .  .  134,1834 

V.  Fish,  1  Pick.  435,  .  .      "       .  .  .  1998 

Hone  V.  Ballin,  1  Sandf.  R.  181,  .  .  .  .  .523 

V.  Folger,  1  Sandf.  K  177,    .  .  .  .  .  523 

V.  Mut.  Safety  Ins.  Co.,  2  Comstock  235 ;  1  Sandf.  137,     122,  143,  499, 

1752,  1753 
Hood's  Ex'rs  v.  Nesbitt,  2  Dall.  137  ;  1  Yeates,  114,  .  .  .       1074 

Hooe  V.  Groverman,  1  Cranch,  214,  ....  1083 

Hoop,  The,  1  Chr.  Rob.  196,  ....  147,  148,  223,  226 

Hooper  v.  Lusby,  4  Campbell,  66,  ...  .  1851 

Hope,  The,  1  Dodson's  Adm.  R.  226,  .  .  .  ,244 

Hope  Ins.  Co.  v.  Boardman,  5  Cranch,  57,  .  .  .  .    167 

Hoppett,  The,  Edw.  Adm.  R.  369,     .....  247 

Hore  V.  Whitmore,  Cowper,  784,  ....       772,2026 

Hornby  v.  Houlditch,  1  T.  R.  93,  n.,  ....        1060 

«.  Lacy,  6  M.  &  S.  166,    .....  1855 

Horncastle  v.  Haworth,  2  Marshall  on  Ins.,  ed.  1823,  681,     .  .        1840 

V.  Stuart,  7  East,  400,  .  .  .  .  .332 

Horneyer  v.  Lushington,  15  East,  46  ;  3  Camp.  85,  744,  809,  939,  1830 

Hoskins  v.  Pickersgill,  3  Doug.  222;  Park,  9  7  ;  Marsh.  Ins.  727,         .       497 
Houghton,  Ex  parte,  17  Ves.  253,  .  ....     265,289 

V.  Gilbert,  7  Carrington  &  Payne,  701,        .  .  .        144 

V.  Manf.  Mut.  F.  Ins.  Co.,  8  Mete.  114,         66,  544,  638,  670,  673, 

871,872,  872,  1948 
Houlditch,  V.  Milne,  3  Esp.  N.  P.  Cas.  86,  ...  1853 

Houstman  v.  Thornton,  1  Holt's  N.  P.  Cas.  242,  .  1595,  1683,  2139 

Houston  V.  N.  E.  Ins.  Co.,  5  Pick.  89,        .  .  .        600,  1010,  2089 

Houstoun  V.  Brodenave,  6  Taunt.  451,  ....       1924 

V.  Robertson,  6  Taunt.  448;  4  Camp.  342  ;  1  Holt,  88,     607,  1924 

Howard,  Sir  Robert's  Case,  2  Salk.  625  ;  1  Ld.  Raym.  480,  .  .         921 

V.  Albany  Ins.  Co.,  3  Denio,  301,  .  .  5,  84,  87,  185 

u.  Tucker,  1  B.  &  Ad.  712,    .....      2126 

Howard  Ins.  Co.  V.  Scribner,  5  Hill,  298,  .  .  .  .     366,1263 

Howell  V.  Cincinnati  Ins.  Co.,  7  Ohio,  276,         1049,  1136,  1148,  1214,  2052 

V.  Protection  Ins.  Co.,  7  Ohio,  284,  .  .  .  1148 

V.  Union  Mut.  Ins.  Co.  of  Philadelphia,  Hunt's  Magazine,  July,  1851, 

1539, 1571 
Howland  v.  Marine  Ins.  Co.  of  Alexandria,  2  Cranch  C.  C.  R.  473,  1048 

Hoyt  «.  Gilman,  8  Mass.  336,  ....    596,1845,1938 

Hubbard  v.  Glover,  3  Camp.  313,  .  .  .  .  .551 

r.  Jackson,  Marsh.  Ins.  3d  ed.  647,  .  .  .  2147 

Hucker  v.  Young,  6  N.  Hampshire  R.  95,  ...  .    2091 

Huckman  v.  Fcruie,  1  Horn  &  Ilurlstone,  149 ;  3  Mees.  &  W.  505,         647, 

653,  654,  893,  898 
Hucks  V.  Thornton,  1  Holt,  30,        .  .  .  .        699,  709,  727 

Hudson  V.  (iuesticr,  4  Cranch,  293,       .  .  .  .  .2104 

V.  Harrison,  3  Brod.  &  Bing.  97  ;  6  J.  B.  Moore,  288,        1603,  1603, 

1669, 1691,  1704,  1732 

Huge  V.  Augusta  Ins.  Co.,  7  Howard's  S.  C.  R.  595,      470,  1642,  1643,  1772 

Hughb  V.  N.  O.  &  CarrolUon  It^iilroad  Co.,  Sup.  Ct.  La.,  May,  1851,         1395 

Hughes  V.  Cornelius,   Carth.  32;  1    Show.  143;  2  id.  232;  T.  Raym.  473; 

Skin.  59  ;  2  Ld.  Raym.  893,  935,       .  .  .  2106 


TABLE   OP  CASES. 


xlvii 


Hughes  V.  Union  Ins.  Co.,  3  Wheat.  159  ;  8  Wheat.  294,  473,  983,  999, 

1006,  1182,  1208,  1956 
Huguenin  v.  Rayley,  6  Taunt.  186,    ....  647,  1948 

Hull  V.  Cooper,  14  East,  479, 618,  690 

Hullman  v.  Whitmore,  3  Maule  &  Selwyn,  337,  .  .     245,  247,  248 

Humphries  r.  Carvalho,  16  East,  45,         .  .  .  .  .17 

Humphrey  v.  Arabin,  Lloyd  &  Goold's  Cas.,  Temp.  Plunkett,  318,  1712 

V.  Union  Ins.  Co.,  3  Mason,  429,        1359,  1431,  1452,  1540,  1594, 

1662,  1705,  1773 

1603,  1669,  1776, 

1881 

.     289,1249,1568 

447,  933,  942,1901 

.   1593 

.  709,  1100 

.    1574 

415 

976, 1843 

385,413,  516,  1797 

.     1985 

V.  Royal  Exch.  Ass. 'Co.,  3  Esp.  289 ;  2  B.  &  P.  430;  3  id.  308,     970, 

1460,  1464 
V.  Ship  John  and  Alice,  1  Wash.  C.  C.  E.  293, 


Hunt  V.  Royal  Exch.  Ass.  Co.,  5  Maule  &  Selwyn,  47, 

Hunter,  The,  Ware's  R.  249, 

: r.  Leathley,  10  B.  &  C.  858  ;  7  Bing.  517, 

V.  Parker,  7  Mees.  &  Welsh.  322, 

V.  Potts,  4  Campbell,  203  ;  Selw.  N.  P.  907,  n., 

V.  Prinsep,  10  East,  378, 

V.  Princep,  Marsh.  Ins.  316, 

V.  Wright,  10  B.  &  C.  714  ;  1  LI.  &  W.  138,    . 

Hurlbert  v.  Pacific  Ins.  Co.,  2  Sumner,  471, 

Hurry  v.  Assignees  of  Hurry,  2  Wash.  C.  C.  R.  145, 


Hurtige  Hane,  The,  2  Chr.  Rob.  124, 

Hurtin  v.  Phoenix  Ins.  Co.,  1  Wash.  C.  C.  R.  400, 

V.  Union  Ins.  Co.,  1  Wash.  530, 

Hussey  v.  Jacob,  1  Ld.  Raym.  87,        . 
Hutchinson  v.  Bowker,  5  Mees.  &  Wels.  542 ;  8  id 
Hutton  V.  American  Ins.  Co.,  7  Hill,  321, 

V.  Bragg,  7  Taunt.  14, 

Hyde  v.  Bruce,  3  Doug.  213,  . 

V.  Good  now,  3  Comstock's  R.  266,   . 

V.  La.  State  Ins.  Co.,  2  Martin,  N.  S.  410, 

V.  Lynde,  4  Comst.  387,       . 

V.  Mississippi  Ins.  Co.,  10  La.  R.  525,    . 


823, 


1940,  1985 
843 

1523,  1659,  1685 

1634 

.     2035 

120 

.       953 

1083 

.       768 

121 

1535,  1547 

523,  1795  a 

.       760 


Icardf.  Goold,  11  Johns.  279,        .....  406 

Idle  V.  Royal  Exch.  Ass.  Co.,  8  Taunt.  755 ;  3  Moore,  115,    1049,  1497,  1500, 

1524,  1531,  1574,  1575,  1583,  1587,  1630 
Illinois  Mut.  Fire  Ins.  Co.  v.  Marseilles  Manuf.  Ins.  Co.,  1  Gilman,  237,    2026 

Mut.  Ins.  Co.  V.  O'Neil,  13  Illinois  R.  39,         .  .  .120 

Imina,  The,  3  Chr.  Rob.  167,         .  .  .  .  262,  279,  835 

Immanuel,  The,  2  Chr.  Rob.  186,         .  .  .  .  .278 

India  and  London  Life  Assurance  Co.  v.  Dalby,  7  Eng.  Law  &  Eq.  R.  (Press 
of  Little,  Brown  &  Co.)  250 ;  S.  C,  15  Eng.  Jur.  982,     ,     1939 
Indian  Chief,  The,  3  Chr.  Rob.  12,  .  .       153,  165,  168,  169,  171 

Indiana  Mut.  Fire  Ins.  Co.  v.  Chamberlain,  8  Blackford,  150,        .   523,  1939 
Indiana,  The,  3  Rob.  44,  .  .  .  .  .  171,  814 

IngersoU  v.  Van  Brokelin,  7  Cowen,  670,  .  .  .  .  312 

Ingham  u.  Agnew,  15  East,  517,  .....       210 

Ingleden  v.  Foster,  4  Vin.  Abr.  281 ;  S.  C,  Marsh.  Ins.  751,  2d  ed.,  950 

Inglis  V.  Usherwood,  1  East,  515,  .  .  .  .  .2110 

V.  Vaux,  3  Camp.  437,    .....   332,944,963 

Inman  v.  Western  Fire  Ins.  Co.,  12  Wend.  452,    .  .  1806,  1810 

Innes  v.  Alliance  Mut.  Ins.  Co.,  1  Sandford,  310,         .  .    849,  849,  852 

Insurance  Co.  of  North  America,  v.  Jones,  2  Binn.  547;  4  Dall.  246,      1347, 

1453 


xlviii 


TABLE   OF   CASES. 


Insurance  Co.  of  Pennsylvania  v.  Duval,  8  Serg.  &  Raw^le,  138,     1175,  1755  a 

Irena,  The,  5  Chr.  Rob.  76,  ....  .     837,  841 

Irving  V.  Manning,  1  Mann.  Gr.  &  Scott,  168;  2  id.  784;  6  id.  419;  1  House 

of  Lords  R.  817,     .....    3,1533,1538 

V.  Richardson,  2  B.  &  Ad.  193 ;  1  Moody  &  Rob.  153,     289,  359,  393, 

421, 1191, 1244, 1997 

J. 

Jacob  V.  J'Ansen,  3  Taunt.  534,       .  .  .    ■        . 

Jackson  v.  Bard,  4  Johns.  230,  .... 

V.  Colegrave,  Carthew,  338, 

V.  Massachusetts  Mut.  F.  &  M.  Ins.  Co.,  23  Pick.  418, 

V.  New  York  Ins.  Co.,  2  Johns.  Cases,  191,     . 

Jacobus  Johannes,  The,  1  Chr.  Rob.  14,     . 

Jalabert  v.  Collier,  Millar  on  Insurance,  323,    . 

James  v.  Bixby,  11  Mass.  34,  ...  . 

V.  Cook,  The,  Edwards's  Adm.  R.  261,  . 

V.  Emery,  5  Price,  521 ;  8  Taunt.  245  ;  2  J.  B.  Moore, 

V.  Jones,  3  Esp.  27  ;  Abbott  on  Shipping,  5th  ed.  20, 

V.  Rogers,  15  Mees.  &  Wels.  375, 

Jameson  v.  Swainstone,  2  Camp.  546,  n.,     . 

Jane,  The,  2  Hagg.  338,  .... 

1  Dod.  Ad.  R.  461, 


Jan  Frederick,  The,  5  Chr.  Rob.  128,   . 
Janney  v.  Columbian  Ins.  Co.,  10  Wheat.  411, 
Jaques  v.  Golightly,  2  W.  Bl.  1073, 

V.  Wilty,  1  H.  Bl.  65, 

Jarman  v.  Coape,  13  East,  394 ;  2  Camp.  615, 
Jarratt  v.  Walker,  1  Camp.  277,     . 
V.  Ward,  1  Camp.  263, 


Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend.  72, 
Jeffery  v.  Walton,  1  Stark.  R.  267, 
Jeffries  v.  Legendre,  4  IVIod.  582 ;  Salk.  443, 
Jell  V.  Pratt,  2  Starkie,  67,         . 
Jellinghaus  v.  New  York  Ins.  Co.,  4  Sandford,  18, 
Jenkins  v.  Heycock,  1  Eng.  Com.  Law  R.,  1853,  p.  408, 
V.  McKenzie,  Millar  on  Insurance,  321, 


210 

29,  127 

507,  1993 

880,  881 

166,  167 

258, 814 

.     1521 

1564,  1591 

835,  836 

125,       .     1960 

1083 

.     1915 

1929 

.     1027 

.   950, 1568 

255,  260,  791,  796,  797 

.     849,  852 

.     1846 

1846 

.     1160 

1029 

.     1030 

72,  638,  642,  866,  1037,  2112 


9 

782 
1883 
1850 

727 
1521 

Jenks  V.  Hallett,  1  Caines's  60;  1  Caines's  Cases  in  Error,  43,      69,  229,  757 
Jennings  v.  Chenango  County  Mut.  Ins.  Co.,  2  Denio,  75,         70,  866a,  872a 
V.  Pennsylvania  Ins.  Co.,  4  Binn.  244,      .     427,  1568,  1847  b,  1985 


Jerusalem,  The,  2  Gallison's  R.  191, 
Jessel  V.  Williamsburgh  Ins.  Co.,  3  Hill,  88 
Johanna  Tholen,  The,  6  Chr.  Rob.  72,  . 
Johan  Pietcr,  The,  Edw.  Adm.  R.  355, 
Johnson  v.  Crane,  Kerr's  (New  Brunswick)  R. 

V.  Greaves,  2  Taunt.  344,  . 

V.  Hudson,  11  East,  180, 

V.  Phrenix  Ins.  Co.,  1  Wash.  C.  C.  R. 

V.  Sliedden,  2  East,  581, 

V.  Siiippen,  2  Ld.  Raym.  982, 

V.  Ward,  (J  lOsp.  4  7,. 


356, 


378, 


84, 


Johnston  v.  Columbian  Ins.  Co.,  7  Johns.  315, 

V.  Ludlow,  2  Johns.  Cas.  481 ;  1  Caines's  Cas.  in  Error,  xxix., 

V.  Sutton,  Doug.  24],  . 

Jolly  V.  Baltimon;  IO(Hiity  Ins.  Society,  1  Har.  &  Gill,  294, 

V.  Walk(;r,  Bcawcs,  316 ;  Park,  Ins.  448;  Marsh.  Ins.  195, 

Jolly's  Ex'ra  v.  Ohio  Ins.  Co.,  1  Wright,  539, 


1940 

1973,  1974 

.       278 

246 

.     1282 

225 

.       221 

615 

1460,  1464 

1583 

2114,  2129 

1802 


1154, 
2109 

906 
1034 
1030 

987 


TABLE    OP   CASES. 


xlix 


R.  15 


Jones  V.  Bow,  Carthew,  225, 

t'.  Herbert,  7  Taunt.  421, 

V.  Ins.  Co.  of  North  America,  4  Dall.  246,     . 

V.  IMaine  Mut.  Fire  Ins.  Co.,  18  Maine  (6  Shapley) 

V.  Paris,  Cooper's  Chan.  56,  . 

V.  Randall,  Cowper,  37  ;  LoQ"t.  383,  . 

V.  Schmoll,  1  T.  R.  130,  n.,  .  .  . 

Jonge  Arend,  The,  5  Chr.  Rob.  14,  .  . 

Clara,  The,  Edw.  Adm.  R.  371,  . 

Frederick,  The,  Edw.  Adm.  R.  357, 

Johannes,  The,  4  Chr.  Rob.  263, 

Klassina,  The,  5  Chr.  Rob.  297,        . 

Mariraretha,  The,  1  Chr.  Rob.  189, 

Pieter,  The  (Amsterdam),  4  Chr.  Rob.  79,  . 

Ruitcr,  The,  1  Acton,  App.  110, 

Thomas,  The,  3  Chr.  Rob.  233, 

Tobias,  The,  1  Chr.  Rob.  329,    . 

Jordaine  r.  Cornewall,  1  Stark.  R.  6, 
Jordan  t'.  Church,  2  Raines's  R.  209,    . 

V.  James,  5  Hammond,  (Ohio)  88,  .  .  .  .  

V.  Tremont  Ins.  Co.,  Sup.  Jud.  Ct.,  Mass.  Suffolk,  March,  1852,    1545 

. V.  Protection  Ins.  Co.,  1  Story's  R.  342,  .  .  .     1644 

V.  Warren  Ins.  Co.,  1  Story's  R.  342,      1049,  1386,  1443,  1446,  1447, 

1449,  1451,  1452,  1623,  1632 
Joseph,  The,  1  Gall.  545;  8  Cranch,  451,  .  .      222,  226,  281,  320,  819 

Josephine,  The,  4  Chr.  Rob.  25,  ....  174,794 

Journie  v.  Bourdieu,  Park,  Ins.  179;  Marsh.  Ins.  223,       .  .  1764 

Joyce  u.  Williamson,  3  Doug.  164,  ....        1166,1174 

Judah  V.  Judd,  5  Day,  534,  .....  95 

v.  Randall,  2  Caines's  Cases,  324,  .  1606,  1608,  1616,  1771 

Juffrow  Catharina,  The,  5  Chr.  Rob.  141 ;  id.  21 ;  1  B.  &  P.  349,    227,  247,  800 

Louisa  Margaretha,  The,  1  Chr.  Rob.  203, 

Maria  Schroeder,  The,  3  Chr.  Rob.  147, 


2105 

2060,  2160 

1206 

804,  881 

.     1978 

211 

.     1129 

247 

.       251 

247 

.       245 

.     164,  245 

271,  272 

237,  828,  844 

.       161 

278 

232,  284,  791 

1996 

.     2044 

197 


Juhel  V.  Church,  2  Johns.  Cases,  333, 

V.  Rhinelander,  2  Johns.  Cases,  120,  487, 

Julia,  The,  8  Cranch,  181 ;  1  Gall.  594, 
Juliana,  The,  2  Dod.  Adm.  R.  504, 
Jumel  V.  Marine  Ins.  Co.,  7  Johns.  412, 

Juno,  The,  2  Chr.  Rob.  116,      .         ,  . 


226 

827,  842 

.  5,  7,  7,  211,1846 

282,446,  628,  748,  1122 

.  223,  253, 814 

212 

1268,  1331,  1350,  1357,  1592,  1704, 

1732,  1736,  1742,  2147 

.   248,  830,  837 


K. 

Kaines  v.  Knightly,  Skinner,  54, 

Kahl  V.  Cologan,  4  Taunt.  565,  . 

— : —  V.  Jansen,  4  Taunt.  565, 

Kane  v.  Columbian  Ins.  Co.  2  Johns.  264, 

V.  Commercial  Ins.  Co.,  8  Johns.  229, 

Kay  V.  Young,  Millar  on  Insurance,  62, 
Keeler  v.  Fireman's  Ins.  Co.,  3  Hill,  250,    . 
Keir  v.  Andrade,  6  Taunt.  498, 
Keisselbrack  v.  Livingston,  3  Johns.  Ch.  R.  144, 
Kelby  v.  Steel,  5  Esp.  194, 


Kellner  v.  Le  Mesurier,  4  East,  396, 

Kelly  V.  Walton,  2  Camp.  155,  . 

Kemble  v.  Bowne,  1  Caines,  75, 

V.  Rhinelander,  3  Johns.  Cases,  130, 


.     109,  116 

.     2086 

2086 

999,  1010 

.      368,  1191,  1262 

.       615 

221,  267,  713,  718,  1043 

.232 

1926 

.     1960 

149,  149,915,  916,  1841,  2018 

.     1669 

.    527,  559,  576,  935,  1251 

380,  391,417,  756,  767,  824. 

1965,  2109 


VOL.    I. 


1  TABLE   OF   CASES. 

Kendrlck  v.  Delafield,  2  Caines,  67,  ....  1080,1080 
Kennedy  v.  Baltimore  Ins.  Co.,  3  Harris  &  Johns.  367,       .  1741,  1955 

V.  St.  La-wrence  County  Mut.  Ins.  Co.,  10  Barb.  285,    70,  637,  872, 

872,  2069 
Kensington  v.  Inglis,  8  East,  273,  .  .  .    151,  248,  2030,  2103 

Kenniston  r.  Merrimack  Mut.  Ins.  Co.,  14  New  Hamp.  K.  341,     .  1097 

Kenny  v.  Clarkson,  1  Johns.  385  ;  2  id.  107,  300,  425,  426,  1191,  2110 

Kent  V.  Bird,  Cowper,  583,         ......  7 

V.  Elstob,  3  East,  18,  .  .  .  .  .  .  1420 

V.  Manufacturers'  Ins.  Co.,  18  Pick.  19,    .        363,  928,  992,  1259,  1838 

Kentucky  Ins.  Co.  v.  Southard,  8  B.  Monroe,  636,        .  .  .70 

Kenyon  v.  Berthon,  1  Doug.  12,  n.,  .  .  .  68,  756,  757 

Ker  t;.  Osborne,  9  East,  378,      .     '        .  .  .  .       1740,2010 

Kettelli'.  Wiggin,  13  Mass.  68,         .....  1026 

Kewly  V.  Ryan,  2  H.  Bl.  343,  ....  438,  438,  1001,  1001 
Keyser  V.  Scott,  4  Taunt.  660,  ....  778,1160,1163 
Kierlighett,  The,  3  Chr.  Rob.  96,  .  .  .  .  .2104 

Kill  v.'HolUster,  1  Wilson,  129,        .  .  .  .  .58,  1940 

Kindersley  v.  Chase,  Marsh.  Ins.,  2d  ed.  423,  ....  2109 
King  V.  Delaware  Ins.  Co.,  2  Wash.  C.  C.  R.  300 ;  6  Cranch,  71,  .  1115 

V.  Franklin,  2  Hall's  R.  1,  .  .  .  .  .2124 

V.  Glover,  5  Bos.  &  Pull.  206,  ....  213 

V.  Hartford  Ins.  Co.,  1  Conn.  333,  .  .  .  .962 

V.  Middletown  Ins.  Co.,  1  Conn.  184,  962,  1002, 1526,  1557,  1698 

V.  Shepherd,  3  Story's  R.  349,  .  .  .  1081,  1099 

V.  State  Mut.  Ins.  Co.,  7  Cushing's  R.  1,   .  .  .  .1712 

Kingsford  r.  Marshall,  1  Moore  &  Scott,  657;  8  Bing.  458,  .  1758 

Kingston  v.  Girard,  4  Dall.  274,  ....  999,  1331 

V.  Knibbs,  1  Camp.  508,  n.,  .  .  .  .     593,  997 

"  "  .  .     2147 

1001 

.     1858 

1913 

.       895 

.     527,  550 

.       574 

1894 


V.  M'Intosh,  1  Camp.  518, 

V.  Phelps,  Peake,  227, 

V.  Wilson,  4  Wash.  C.  C.  R.  310, 


Kinlock  v.  Craig,  3  T.  R.  783, 
Kinnear  v.  Borradaile,  5  Mann.  &  Gr.  643,  n., 
Kirby  v.  Smith,  1  Barn.  &  Aid.  672, 
Klein  v.  Lancaster  Ins.  Co.,  Wharton's  Digest,  319 
Klendyn  v.  Widow,  1  Benecke,  390, 
Klingender  v.  Bond,  14  East,  484,  .  .  .  .  .245 

Knight  V.  Cambridije,  8  Mod.  230 ;  2  Ld.  Raym.  1349 ;  1  Str.  581,  1062, 

1072,  2022,  2022 
Knox  V.  Wood,  1  Camp.  541,  .  .  .  .  .  311 

Kohne  v.  Ins.  Co.  of  North  America,  6  Binn.  219 ;  1  Wash.  C.  C.  R.  93,  158, 

24,  540,  624,  625,  1117 

V.  New  Orleans  Ins.  Co.,  12  La.  R.  349,     .  .  .  1158 

Koster  i-.  Eason,  2  Maule  &  Selwyn,  112,         .  .  .  .507 

V.  Inncs,  R.  M.  333,  .  .  .  .    "         .  2139 

I'.  Reed,  6  Barn.  &  Cres.  19,      .....     2139 

Krnmbhaar  ?\  Marine  Ins.  Co.,  1  Serg.  &  Rawle,  281,         .  .  1669 

Kukm  Kianp  v.  Vigiic,  1  T.  R.  304,       .  .  .7,  1141,  1523,  2022 

Kynicr  v.  Suwercropp,  1  Camp.  109,  180,  n.,  .  .  .  197 

Kynaston  v.  Liddcll,  8  J.  B.  Moore,  223,  .  .  .  .1989 


Lacaussadc  v.  White,  7  T.  R.  535,  .....  1846 

Lack  V.  Seward,  4  C.  &  P.  106,  .....     1420 

Lacon  )'.  Iliggins,  3  Starkie,  178,    .....  2110 

Lady  Durham,  The,  3  llagg.  196,  .  .  .  .  .212 


TABLE   OF   CASES. 


li 


Lady  Jane,  The,  1  Chr.  Rob.  202, 226 

Laing  v.  Glover,  5  Taunt.  49,    .  .  .  .  .  .       782 

V.  United  Ins.  Co.,  2  Johns.  Cases,  174,  487,  .  1154,  2109 

Laird  i^.  Robertson,  4  Bro.  P.  C.  488,     .  .  .  .  .113 

Lake,  (Sir  Francis's  Case,)  Dyer,  3G5,        ....  2028 

Lake  v.  Columbian  Ins.  Co.,  13  Ohio,  48,  .  .  .  .1757 

Lamb  V.  Durant,  12Mass.  54,  .  .  .  .  .2124 

Lambert  v.  Liddard,  1  Marsh.  R.  149  ;  5  Taunt.  480,   .  .  .935 

V.  Smith,  1  Cranch,  C.  C.  R.  3G1,  .  .  2109,  2112 

Lambeth  v.  Western  F.  &  M.  Ins.  Co.,  4  Rob.  (La.)  235 ;  11  id.  86,     .       383 
Lane  v.  Maine  Fire  Ins.  Co.,  3  Fairfield,  44,     .  .  .  441,  880 

V.  Penninian,  4  Mass.  R.  92,   .  .  .  .  .  313 

Lang  V.  Anderson,  3  B.  &  C.  495;  5  D.  &R.  393;  1  C.  &P.  171,        .       773 
Langdale  I'.  Mason,  Marsh.  Ins.  791,  ....  1162 

Langdon  v.  N.  Y.  Equity  Fire  Ins.  Co.,  2  Hall,  226,     .  .  .883 

Langhorn  V.  AUnutt,  4Taunt.  511,  .  .  .  .  1007,2086 

17.  Cologan,  4  Taunt.  330,       .  .  .  .113,115,415 

V.  Hardy,  4  Taunt.  628, 939 

Lanvon  v.  Blanchard,  2  Camp.  597,       .....     1916 
Lapham  v.  Atlas  Ins.  Co.,  24  Pick.  R.  1,     .  .  962,  985,  985, 1002 

Lapsley  v.  Pleasants,  Pres.  of  U.  S.  Ins.  Co.,  4  Binu.  502,      1348,  1617,  1799 
Laroche  v.  Oswin,  12  East,  131,      .....  999 

Lateward  v.  Carling,  Park  on  Insurance,  207,  .  .  .  .1328 

Latham  v.  Rutley,  2  B.  &  C.  20  ;  3  D.  &  R.  211,    .  .  .  2025 

Lavabre  v.  Wilson,  and  Same  v.  Walter,  1  Doug.  271,  147,  1000,  1008 

Lavinia,  The  Ship,  y.  Barclay,  1  W^ash.  C.  C.  R.  49,    .  .  .1985 

La  Virginie,  5  Chr.  Rob.  98,"  ....  .171,1137 

Law  u.  Goddard,  12Mass.  112,  .  ....         311,1162 

17.  Hodgson,  or  Hodson,  2  Camp.  147  ;  11  East,  300,  .  .  215 

V.  Hollingsworth,  7  T.  R.  160,       .  .  .        713,  714,  715,  733 

Lawrence  v.  Aberdein,  5  Barn.  &  Aid.  107,  .        140,  1136,  1162,  1163 

V.  Columbian  Ins.  Co.,  2  Peters's  Sup.  Ct.  R.  25,      .  .       392 

V.  New  Bedford  Com.  Ins.  Co.,  2  Story's  R.  471,  .  1602 

V.  New  York  Ins.  Co.,  3  Johns.  Cases,  217,  .  .       1460,  1464 

V.  Ocean  Ins.  Co.,  11  Johns.  241,  .  .    1801,  1819,  2101 

V.  Sebor,  2  Caines,  203,         .  .        383,  397,  416,  1674,  1852 

V.  Sydebotham,  6  East,  54,  .  .  .  1027,  1029 

V.  Vanhorne,  1  Caines,  276,  .  383,  416,  588,  1700,  1742,  1852 

Lawrent  v.  Chatham,  Fire  Ins.  Co.,  1  Hall,  41,       .  .    1213,  1245,  1245 

Lazarus  v.  Commonwealth  Ins.  Co.,  19  Pick.  81,     92,  98,  107,  287,  880,  1971, 

2102 


V.  General  Interest  Ins.  Co.,  5  Pick.  76, 


92,  107,  265,  2124 
.  135, 136 
.  1808 
1649,  1740 
447,  933 


Leach  v.  Perkins,  17  Maine,  462, 
Leadbetter  v.  iEtna  Fire  Ins.  Co.,  1  Shepley,  265, 
Leatham  v.  Teny,  3  Bosanquet  &  Puller,  479, 
Leathy  v.  Hunter,  7  Bingham,  517  ;  20  B.  &  C.  858, 
Leavenworth  v.  Delafield,  1  Caines,  573,  1332,  1337,  1369,  1379,  1392, 

1708, 1741 
Leavitt  v.  Western  F.  &  M.  Ins.  Co.,  7  Rob.  (La.)  351,  .     87,  881,  881 

Le  Cheminant  v.  AUnutt,  4  Taunt.  36  7,  .      247,  745,  126  7,  1742,  1743 

V.  Pearson,  4  Taunt.  367,     .  247,  745,  1267,  1742,  1743,  1743 

Le  Cras  v.  Hughes,  3  Doug.  81,  ....  .      321 

Lee  V.  Beach,  Park  on  Ins.  342  ;  Marsh,  on  Ins.  160,  .  .    695,  725 

17.  Boardman,  3  Mass.  238,  .  .  .  1620,1705,1732 

V.  Gray,  7  Mass.  349,  .  .  .         1023,  1025,  1025,  1115 

V.  Mass.  F.  &  M.  Ins.  Co.,  6  Mass.  208,      .  .  364,383,1253 

Leeds  v.  Cheetham,  1  Sim.  146,     .....  402 

17.  Marine  Ins.  Co.,  2  Wheat.  380  ;  6  id.  565,      .  .        1915,  1939 

Leevin  v.  Cormac,  4  Taunton,  483,  ....  246 


lii 


TABLE    OF   CASES. 


Lefevre  t).  Boyle,  Ellis  on  Ins.  163,  .....  1998 
Leftwitch  I'.  St.  Louis  Perpet.  Ins.  Co.,  5  La.  Ann.  Rep.  706,         .  2132 

Leigh  y.  Leigh,  1  B.  &  P.  447,  ....        2060,2160 

V.  Mather,  1  Park,  Ins.  64  ;  1  Esp.  R.  412,  .  .  955 

Leland  v.  The  Medora,  2  Woodb.  &  Minot,  92,  .  .      534  a.,  2123 

V.  Stone,  10  Mass.  459,      .....  66 

Le  Mesurier  v.  Vaughan,  6  East,  382,  ....       430 

Le  Neve  v.  Edinb.  &  Lond.  Shipping  Co.,  1  Bell's  Com.,  5th  ed.  p.  581,  1420 
Lempke  v.  Vaughan,  1  Biug.  473  ;  7  D.  &  R.  236  ;  8  B.  Moore,  649,  245 
Lenox  v.  United  Ins.  Co.,  3" Johns.  Cas.  178,  and  2d  ed.  451,         1282,  1283, 

1414 
Leonard  v.  Bredenbrugh,  8  Johns.  29,  ...  .      1853 

u.  Huntington,  15  Johns.  298,      .  .  .  .  2124 

211,  2129 

1766 

1226,  1229 

.       119,  780 

216,  595, 1117 

1853,  1886 

.      1950 

.  1160, 1160 

888 

1920 

.       2119 

1160 

1062,  1082 

1719 

1181,  1203,  1219,  1460.  2127 

757 

1288,  1289 

539 

1115 

2101 

1865,  1880,  2112, 

2173,  n. 

.       2124 

.  620 

780 

2050,  2057,  2101,  2103 

557,  570,  572,  646,  647,  654,  655, 

659,  898,  2159 

.      840 

1004, 1950 

871,881 

1481 

262,  835 

1028 

.       841 

615,  1948,1949 

615 

Livermoro  r.  Newburyport  Mar.  Ins.  Co.,  1  Mass.  R.  264  ;  2  id.  231,      16  74, 

1675 


Le  Pypre  v.  Farr,  2  Vern.  716, 

Leroy  v.  Gouverneur,  1  Johns.  Cas.  226, 

V.  United  Ins.  Co.,  7  Johns.  343, 

Lethulier's  Case,  2  Salkeld,  443,  . 
Lever  v.  Fletcher,  Park,  Ins.  360, 
Leverick  i'.  Meigs,  1  Cowen,  645, 
Levie  v.  Newnham,  4  Taunton,  722,  . 
Levy  V.  Allnutt,  15  East,  267, 

V.  Bailie,  7  Bing.  349,    . 

I'.  Barnard,  2  J.  B.  Moore,  34 ;  8  Taunt.  149, 

V.  Merrill,  4  Greenl.  180, 

V.  Vaughan,  4  Taunton,  387, 

Lewen  v.  Suasso,  Postleth.  Diet.,  Art.  Assur.  . 
Lewis  V.  The  Elizabeth  &  Jane,  Ware's  Rep.  41, 

I'.  Rucker,  2  Burr.  1167, 

V.  Thatcher,  15  Mass.  431, 

V.  Williams,  1  Hall,  430, 

Lexington  Ins.  Co.  v.  Pavor,  16  Ohio  R.  324, 
Liddard  v.  Lopes,  10  East,  526, 

Liebnian  v.  Pooley,  2  Starkie's  R.  167, 

Lightbody  v.  N.  Am.  Ins.  Co.,  23  Wend.  18,      25,  26,  92 

Ligon  V.  Orleans  Nav.  Co.,  7  Martin,  682, 

Lillie  V.  Dennison,  3  Bligh,  220,    .  .  .  . 

Lilly  V.  Ewer,  1  Douglass,  72, 

Lincoln  v.  Battelle,  6  Wend.  475, 

Lindenau  v.  Desborough,  8  B.  &  C.  586, 


Liotard  v.  Graves,  3  Caines,  226, 
Lippincott  V.  Louisiana  Ins.  Co.,  2  La.  R.  399, 
Lipscomb  v.  Boston  Mut.  F.  Ins.  Co.,  9  Mete.  205, 
Liscom  V.  Boston  Mut.  F.  Ins.  Co.,  9  Mete.  R.  (Mass.)  205, 
Lisette,  The,  6  Chr.  Rob.  387,    .... 
Little  r.  La  Perp.  Ins.  Co.,  7  Miss.  379, 
Little  William,  The,  1  Acton's  Adm.  R.  141,     . 
Littledale  i'.  Dixon,  4  B.  &  P.  151, 
i>.  Kenyon,  4  B.  &  P.  151, 


Li  vie  V.  .ransen,  12  East,  648, 
Livingston  r.  Col.  Ins.  Co.,  3  Johns.  49,     . 

V.  Delafield,  1  Johns.  523, 

V.  Delafielil,  3  Caine's  R.  49,    . 

V.  Ilaslic,  3  Jolins.  Cases,  293, 


1137,  1137,  1161,  1267,  1743 

332,334,1647,1741 

1948, 1949 

615,  2074,  2158 

1662,  1700 


V.  Maryland  Jns.  Co.,  6  Cranch,  274 ;  7  id.  506,        524,  560,  595, 

789,  809,  1117,  1677,2110,  2119 


TABLE    OF   CASES.  liii 

Livingston  v.  Roosevelt,  4  Johns.  R.  265,  ....  1852 

Lloyd  V.  CoUett,  Bro.  Ch.  Cas.  469,      .....        771 

r.M'Masters,  7  Martin,  N.  S.  247,    ....  1985 

Locke  V.  N.  Am.  Ins.  Co.,  13  Mass.  61,  .  .         286,  426,  588,  641 

Loekett  v.  Merchants'  Ins.  Co.,  10  Rob.  R.  (La.)  339,       .  .     980,  1003 

Lockyer  v.  Offley,  1  T.  R.  252,  .  .     195,  1062,  1147,  1147,  1484 

Lodwicks  V.  Kennedy,  5  Ohio,  (Hammond's)  436,  ,  .  1048,  1096 

London  Ass.  Co.  I'.  Sainesbury,  3  Doug.  245,  ....      2001 
London  Packet,  The,  1  Mason,  14,  ...  .  274 

Long  V.  Allan,  or  Allen,  4  Doug.  276,  .  .  133,  1834,  1844 

V.  Bolton,  2  Bosanquet  &:  Puller,  209,  ...  632 

V.  Buff,  2  Bosanquet  &  Puller,  209,       .  .  .  .632 

V.  Grenville,  3  Barnewall  &  Cress  well,  10,  .  -  2061 

V.  Penn.  Ins.  Co.,  6  Pennsylvania,  421,  .  .    523,  523,  2044 

Loomis  V.  Shaw,  2  Johns.  Cases,  36,  .  .  .         318,  1474,  1655 

Lopes  V.  Winter,  Postlethwaite's  Diet.,  Tit.  Average,  .  .        1336 

Lorainc  i;.  Thomlinson,  Doug.  564,  .  .  .        1820,1832,2119 

Lord  v.Dall,  12  Mass.  115,    .....  .211,356 

V.  Ferguson,  9  N.  Hampshire,  380,  .  ,  .     2124,  2124 

Lorent  v.  S.  Car.  Ins.  Co.,  1  :^ott  &  McCord,  505,  .  .  127,  1111 

Lorillard  v.  Palmer,  15  Johns.  14,  .  .  .  .  .  1650 

Loring  u.  Gurney,  5  Pick.  15,  ....  140,2119 

V.Neptune  Ins.  Co.,  20  Pick.  411,  .  .  .  .1414 

V.  Proctor,  26  Maine,  18,       •  .  .  .  .  24 

Lothian  D.  Henderson,  3  Bosanquet  &  Puller,  499,        .  757,2106,2109 

Louisa  Bertha,  The,  1  Eng.  Law  &  Eq.  Rep.,  (Press  of  Little,  Brown  &  Co.,) 

665,  ......         303,  1719 

Louisa  Charlotte,  The,  1  Dodson's  Adm.  R.  308,     .  .  .  245 

Louisiana,  (The  Ship,)  v.  Barclay  Condy's,  Marsh.  741  b.,      .  .     1564 

Louisville  F.  &  INIar.  Ins.  Co.  v.  Coleman,  9  Dana's  R.  147,  .  1775 

Louisville  Mut.  F.  Ins.  Co.  v.  Bland,  9  Dana's  R.  143,  1773,  2025,  2132 

Louusbury  I'.  Pr'ot,  Ins.  Co.,  8  Connect.  459,  .  .     881,1162,2026 

Lovering  v.  Mercantile  Ins.  Co.,  12  Pick.  34^,    .        '    .        1676,  1686,  1833 
Low  V.  Davy,  5  Binn.  595,    .....    973,  1059,  1601 

Lowell  V.  Columbia  Ins.  Co.,  3  Cranch  C.  C.  R.  83,  .  .  1326 

Lowry  V.  Bourdieu,  1  Doug.  451,  468,  ....     1846 

u.  Russell,  8  Pick.  360,  ....  980,1003 

Lubbuck  V.  Potts,  7  East,  449,    ....  220,  915,  1846 

V.  Rowcroft,  5  Espinasse's  R.  50,    .  .  .  .      1,  1115 

Lucas  V.  Groning,  2  Marsh.  R.  460  ;  7  Taunt.  164;  1  Stark.  391,  1944 

V.  Jefierson  Ins.  Co.,  6  Cowen,  635,  .  .     1250,  1256,  2001,  2146 

Lucena  v.  Craufurd,  3  B.  &  P.  75  ;  5  id.  269,       174,  199,  212,  241,  321,  322, 

323,  324,  382,  388,  482,  1858,  1973,  2018,  2021 

Luciani  V.  Am.  Ins.  Co.,  2  Wharton's  R.  167,  .  .  ,         1957 

Ludlow  V.  Bowne,  1  Johns.  1,      .  .  .  .  .         260,  791 

V.  Columbian  Ins.  Co.,  1  Johns.  335,  .    1057,  1059, 1601,  1608 

V.  Dale,  1  Johns.  Cases,  16,  .  .  .  .  .2109 

Luke  r.  Lyde,  2  Burr.  882,     .  .  .  .  .  .1739 

Lupton  u.  Cutter,  8  Pick.  248,     .  .  .  .      ,       .  1797 

Lutwidge  v.  Grey,  Abbott  on  Shipping,  292,  .  .  .         1445 

Luxford  V.  Large,  5  Car.  &  Payne,  421,  .  .  .  .  1420 

Lyman  u.  United  Ins.  Co.  2  Johns.  Ch.  R.  630,       .  .  .117,1937 

Lynch  v.  Dalzell,  4  Brown's  P.  C.  431,    78,  87,  179,  1828,  1973,  1986,  2021, 

2052 

V.  Dunsford,  14  East,  494,  .  .  .  .  .676 

V.  Hamilton,  3  Taunt.  37,     .  .  .  538,  608,  676,  676 

Lyon  V.  Commercial  Ins.  Co.,  2  Rob.  (La.)  R.  266,  .     635,  1038,  1949 

V.  Summers,  7  Conn.  399,  .  .  .  .  .81 


liv  TABLE   OF   CASES. 


M. 

Maanss  v.  Henderson,  1  East,  335,  .....  1916 

Maastrom,  The,  5  Chr.  Rob.  21,  .  .  .  .  .810 

Macarty  u.  Louisiana  Ins.  Co.,  17  La.  R.  366,         .  .  .     87,1743 

McAndrew  v.  Bell,  1  Esp.  373  ;  Holt,  572,        .  .    286,  615,  2126,  2126 

Mc Andrews  ?;.  Vaughan,  Marshall  on  Insurance,  232,        .  .  1767 

McArthy  i).  Able,  5  East,  388,  .  .  .  .  1649,1704,1740 

McBride  v.  Marine  Ins.  Co.,  7  Johns.  431 ;  5  id.  299,    913,  1111,  1268,  1347, 

1430,  1453,1620,  1742 
McCall  V.  Marine  Ins.  Co.,  8  Cranch,  59,    .  .  .  .  1116 

McCargo  v.  Merchants'  Ins.  Co.,  10  Rob.  (La.)  R.  202,  334, 

—  V.  New  Orleans  Ins.  Co.,  10  Rob.  (La.)  R.  202,  . 

McCombie  u.  Davies,  7  East,  52  ;  Smith,  557,  . 
McConnell  v.  Hector,  3  Bos.  &  Pull.  113,    . 
McCormick  v.  Ferrier,  Hayes  &  Jones,  12,        . 
McCrea  v.  Purmont,  16  Wend.  460, 
McCuUoeh  v.  Eagle  Ins.  Co.,  1  Pick.  278, 

V.  Indiana  Mut.  Fire  Ins.  Co.,  8  Blackford,  50, 


449,  697 

1110 

.     1918 

.     149, 153 

•396,  1960 

515 

17 

523 

.     1824 

405 

.       952 

503 ;  4  Camp. 

1758 

.       546 

886 

536,  881 


V.  Royal  Exch.  Ass.  Co.,  3  Camp.  406, 

Macdonald  v.  Black,  20  Ohio  R.  123, 

McDonnell  v.  Carr,  Hayes  &  Jones,  257, 

McDougle  V.  Royal  Exch.  Ass.  Co.,  1  Starkie,  130,  4  M.  &  S 

283,  .  .  ... 
McDowall  V.  Eraser,  Doug.  247, 
McEvers  i'.  Lawrence,  Hoffman's  Ch.  R.  173, 
McEwen  v.  Montgomery  Mut.  Fire  Ins.  Co.,  5  Hill,  101, 
McFee  v.  South  Carolina  Ins.  Co.,  2  McCord,  503,  .  .  1001 
McGaw  V.  Ocean  Ins.  Co.,  23  Pick.  405,  ,  1439,  1446,  1451,  1638 
McGinney  v.  Phoenix  Ins.  Co.,  1  Wend.  85,  .  .  .  180 
McGregor  v.  Horsfall,  4  Mees.  &  Wels.  321,  ....  1989 
—   V.  Ins.  Co.  of  Pennsyivania,  1  Wash.  C.  C.  39,       134,  1238,  1744, 

2120 
Mclntire  v.  Bovine,  1  Johns.  229,  ....  1082,  1083,  1803 
Mcintosh  U.Marshall,  11  Mees.  &  Wels.  116,    .  .  605,1953,2078 

V.  Slade,  9  Dowl.  &  Ryl.  738,       ....  2007 

Mclver  V.  Henderson,  4  Maule  &  Selwyn,  576,  .  .  .     1704 

V.  Humble,  16  East,  169,     .....  2124 

Mackenzie  v.  Sheddcn,  2  Camp.  431,    .  .  .  .  332,  336,  975 

Mackey  v.  Rhinelander,  1  Johns.  Cases,  408,  .  .  .  620,  2052 

Mackie  v.  Pleasants,  2  Binn.  363,  .  .  .  ,  .758 

McKim  V.  Phoenix  Ins.  Co.,  2  Wash.  C.  C.  R.  89,  368,  1182,  1191,  1198, 

1241,  1258,  1262 
M'Kintirc  v.  Bowne,  1  Johns.  R.  229,  .  .  1024,  1082,  1688,  1803 

Mackroll  v.  Siniond,  2  Chit.  666,      .....  1652 

McLanahau  i'.  Universal  Ins.  Co.,  1  Peters's  Sup.  Ct.  R.  170,     534,  559,  615, 

616,  720,  726,  733,  1944,  1950,  2112 
M'Laren  v.  Hartford  Fire  Ins.  Co.,  1  Seldcn's  R.,  Court  of  Errors,  N.  Y.  151, 

2123 
MfLaughlin  v.  Washington  County  Mut.  Ins.  Co.,  23  Wend.  525  .  2147 
McLellan  v.  Maine  V.  is.  M.  Ins.  Co.,  12  Mass.  246,  .  818,  823,  1688,  1815 
M'Mastcrs  v.  West  Chester  Ins.  Co.,  25  Wend.  R,  874,       .  .  1813 

McMastcrsu.  Schoolbred,  1  Esp.  237,    .  .  .  .       1590,2023 

McMillan  v.  Union  Ins.  Co.,  Rice's  Law  R.  249,      .  .  .     713,  726 

McNair  u.  Coulter,  4  Browne's  P.  C.  450,  ....     1183 

Macomber  u.  Parker,  13  Pick.  175,  ....  132 


TABLE   OF   CASES. 


Iv 


Mactire's  Adm'rs  V.  Frith,  6  Wend.  104,  .  .  .  .17 

Macy  V.  AVhaling  Ins.  Co.,  9  Mete.  354,      .  •  136,  144,  497,  1684 

Madison,  The,  Edw.  Adm.  R.  224, 825 

Madonna  del  Garcia,  The,  4  Chr.  Rob.  195,  .  .  .  226 

Mafi'alhaens  v.  Busher,  4  Camp.  54,       .  .  .  .  .     2004 

Maggrath  v.  Church,  1  Caines,  196,    1286, 1348,  1385, 1386,  1545,  1617,  1766 
Mao-nus  v.  Betteman,  9  Eng.  Law  &  Equity  R.  (Press  of  Little,  Brown  &  Co., 
461 ;  S.  C,  20  Eng.  Law  J.  R.  (n.  s.)  Com.  PI.  119,  1087 

Magoun  v.  New  England  Mut.  Ins.  Co.,  1  Story's  R.  157,     1098,  1107,  1137, 

1154,  1154 
Maisonnaire  v.  Keating,  2  Gallison's  R.  325, 
Maley  v.  Shattuck,  3  fcranch,  458, 
Mallough  V.  Barber,  4  Camp.  150,  . 
Man  V.  Shiffner,  2  East,  523,     . 
Manchester,  The,  2  Acton,  60, 
Mandcville  v.  Welch,  5  Wheat.  277,      . 
Manhattan  Co.  v.  Ledyard,  1  Caines,  192,  . 
Manilla,  The,  Edw.  Adm.  R.  1, 
Manly,  The,  1  Dodson's  Adm.  R.  257, 
Manly  v.  United  M.  &  F.  Ins.  Co.,  9  Mass.  85, 
Mann  r.  Forester,  4  Camp.  60, 
Manning  v.  Gist,  Marsh.  Ins.  367, 

V.  Irving,  1  Mann.  Gr,  &  Scott,  168  ;  2  id.  784 ;  6  id.  319  ;  1  House 

ofLordsR.  817,        ....  3,1533,1538 

-u.  Newnham,  Millar  on  Insurance,  303;  3  Doug.  130;  Park,  260, 

1526,  1547,  IGOl,  1766 
Mansfield  v.  Maitland,  4  Barn.  &  Aid.  582,        .  .  338,  338,  1 234 

Marcardier  v.  Chesapeake  Ins.  Co.,  8  Cranch,  39,        1070,  1082,  1083,  1608, 

1615,  1769 
March,  Earl  of,  v.  Pigot,  5  Burr.  2802,        .  .  .  .     731,  925 

Marchesseau  v.  Merchants'  Ins.  Co.,  1  Rob.  (La.)  R.  438,        .  .     2144 

Marden  v.  South  Carolina  Ins.  Co.,  1  Const.  R.  200,  .  .862,  1002 

Margarette,  The,  1  Acton's  Appeal  Cases,  333,      .  .  .     222,  281 

Maria,  The,  1  Chr.  Rob.  340,     .....  818,  819,  822 

5  Chr.  Rob.  365,  .....  830 

Maria  Jane,  The,  1  Eng.  Law  &  Eq.  R.  (Press  of  Little,  Brown  &  Co.)  658, 

1719, 1719 
Marianna,  The,  6  Chr.  Rob.  24, 
Marianna  Flora,  The,  11  Wheat.  43, 
Mariatigue  v.  Louisiana  State  Ins.  Co.,  8  La.  R.  68, 
Marine  Ins,  Co.  v.  Straas,  1  Mumford,  408, 

V.  United  Ins.  Co.,  9  Johns.  190, 


.  272,  273 

.       • 

.  2109 

1884, 1894 

1915 

, 1915,  1921 

.  830,  836 

.     .     . 

85 

2021 

.     .     . 

.   224 

249 

.   116, 

918,  928,  992 

,          , 

1870,  1916 

• 

782 

261, 


263 

'  818 

195,  1147 

lOiO, 2095 

.     1741 

1183 

.     2028 

992,  1001,  1531, 

1819 

.   849,  1844 

.     1955 

1965 

B.  &  P.  430,     161 

818 

195 

2014,  2025 

13,  554,  992,  1010 

265,  1968,  1970,  2124,  2126 

Marshall  v.  Del.  Ins.  Co.,  4  Cranch,  202;  2  Wash.  C.  C.  R.  54,      1622,  1662 

V.  Nashville  Ins.  Co.,  1  Humphrey,  118,         .  .  .1106 

V.  Parker,  2  Camp.  69,      .  .         1182,  2093,  2109,  2129,  2131 


Marine  Ins.  Co.  of  Alexandria  v.  Hodgson,  7  Cranch,  332 

6  Cranch,  206 

V.  Tucker,  3  Cranch,  357, 

V.  Wilson,  3  Cranch,  187, 

V.  Young,  1  Cranch,  332, 

Markington  v.  Vernon,  1  B.  &  P.  101,  n.,   . 

Marryatt  v.  Wilson,  8  T.  R.  31;  7  id.  269 ;  2  Esp.  546 ;  1 

Mars,  The,  6  Chr.  Rob.  79, 

8  Cranch,  417,- 

Marsden  v.  Gray,  6  East,  564', 

V.  Reid,  3  East,  572, 

Marsh  v.  Robinson,  4  Esp.  98, 


Ivi  TABLE   OF   CASES. 

Marshall  v.  Union  Ins.  Co.,  2  Wash.  C.  C.  R.  357,  624,  624,  678,  2112 

Marsham  r.  Dutrey,  Select  Cases,  58,    .  .  .  .  .     1299 

Martin  v.  Crockett,  14  East,  465,     .  .  .       1491,  1573,  1623,  1682 

V.  Del.  Ins.  Co.,  2  Wash.  C.  C.  R.  254,  .  .  .       1003 

r.  Fishing  Ins.  Co.,  20  Pick.  389,  760,866,928,  992,  1162,1224,  1803, 

2152 

V.  Salem  Marine  Ins.  Co.,  2  Mass.  420,       .  .       975,  1101,  1347 

V.  Sitwell,  1  Shower,  156,         ....         1819,  1994 

Mary,  The,  (Folger,)  5  Chr.  Rob.  200,     .  .  .  .  .254 

" ,  9  Cranch,  126  ;  1  Gall.  620,      226,  226,  262,  1568,  1755  a,  2104, 

2106 
Mary  Ann,  The,  4  Notes  of  Cas.  in  Admiralty,  376,  .  523  a,  917  a 

Mary  Ford,  The,  3  Dall.  188,      .  .  .  .  .  .321 

Mary,  The  Sloop,  Paine's  R.  C.  C.  of  U.  S.,  New  York,  671,        1847b,  1940 
Maryland  Ins.  Co.  v.  Bosley,  9  Gill  &  Johns.  337,  .  .  .1774 

: V,  Bossiere,  9  Gill  &  Johns.  121,  .  .  70,  70,  931 

V.  Graham,  3  Harris  &  Johns.  62,    1956,  1959, 1964,  2011, 

2028 

V.  Le  Roy,  7  Cranch,  26,  ...  983 

?;.  Ruden's  Admr.,  6  Cranch,  338,     .  .  .1953 

V.  Woods,  6  Cranch,  29,  .  .  749,  831,  837,  2109 

Maryland  and  Phoenix  Ins.  Co.  v.  Bathurst,  5  Gill  &  Johns.  159,       550,  567, 

593,  617,  625,625,  631,  1044,  1590,  1670,  1694 

Mason  v.  Franklin  F.  Ins.  Co.,  12  Gill  &  Johns.  468,  .      141,  491,  493 

V.  Harvey,  22  Eng.  Law  &  Eq.  R.  1853,  Exchequer  Cham.  336  ;  S. 

C.  20  Eng.  Law  &  Eq.  R.  (Press  of  Little,  Brown  &  Co.,)     886 

V.  Lickbarrow,  2  T.  R.  63,        .  .  .  .  .       2126 

u.  Sainesbury,  3  Doug.  61,  ....  2001 

V.  Ship  Blaireau,  2  Cranch,  240,  .  .  .  .1028 

V.  Skurray,  Park,  191  ;  Marsh.  226,  133,  144,  663,  1764,  1767 

Masters  v.  Madison  County  Mut.  Ins.  Co.,  1 1  Barbour's  R.  Sup.  Ct.  N.  Y., 

624,  .  .  .  641,  872  a,  874  a,  880,  1876 

r.  Miller,  4  T.  R.  320,  .  .  .  .  .113 

Matchless,  The,  1  Hagg.  97,  .  .  .  .  .  .153 

Matthews  v.  Houghton,  1  Fairfield's  R.  420,  ...  81 

V.  Howard  Ins.  Co.,  13  Barbour's  R.  234,         .  .  1137 

Matthle  v.  Potts,  3  Bos.  &  Pull.  23,  .  .  .  .  970,  2022 

Maurv  v.  Shedden,  10  East,  540,  ....        914,  1518 

Mavor  v.  Pyne,  2  C.  &  P.  91  ;  3  BIng.  285,  ...  14 

r.  Simeon,  3  Taunton,  497,  n.,      .....      513 

Maxwell  V.  Ro])inson,  1  Johns.  333,  ....  960 

Mav  V.  Babcock,  4  Ohio  R.  334,  .  .  .  .  .758 

V.  Christie,  1  Holt,  67,  .  .  .  .  .1815 

MayalU-.  MItford,  1  N.  &P.  732;  6  Ad.  &E1.  670,      .  .  .872 

Mavdew  r.  Scott,  3  Camp,  205,         .....  1160 

— '- V.  Forrester,  5  Taunt.  615,       .  .  .  .       1892,  1896 

Maynard  v.  Rhodes.  1  C.  &  P.  360  ;  5  D.  &  R.  266,     570,  648,  651,  653,  654, 

658,  893, 898 
l^Iaync  r.  Walter,  Doug.  79,  ...  .        630,  820,  2109 

Mayo  V.  Maine  F.  &  M.  Ins.  Co.,  4  Mass.  R.  374,         .  .  .      1453 

^- r.  Maine  F.  iSi  M.  Ins.  Co.,  12  Mass.  R.  259,  .  .  1201 

Mayor  of  New  York  «.  Lord,  1  7  Wend.  285,    ...  .  .     1484 

Mead  r.  Davison,  3  Ad.  &  Kl.  303,  .  .  .  .        13,925 

Mecliaiiics'  Uaiik  v.  IMerchants'  Bank,  6  Mete.  13,        .  .  .     1884 

Mccch  V.  Philadelphia  F.  &  Inland  Navigation  Co.,  3  Wharton's  R.  473, 

1240' 

V.  Robinson,  4  Wharton's  11.  360,  .  .     1305,  1313,  1315 

Mcllen  i>.  Nat.  Ins.  Co.,  1  Hall,  452,     .  .  .        116,337,480,2119 


TABLE   OF   CASES.  Ivii 

Mellick  U.Peterson,  2  Wash.  C.  C.R.  31,      ■        .  .  .  515 

Mellish  V.  Allnutt,  2  M.  &  S.  106,       ....  938,  939,  2061 

V.  Andrews,  5  Taunt.  496  ;  15  East,  13  ;  2  M.  &  S.  271,     1491, 1669, 

1674 

V.  Bell,  15  East,  4,  •  .  .  .  .  2021 

r.  Staniforth,  3  Taunton,  499,  .  .  .  .1160 

Mellon  u.  Bucks,  5  Martin,  N.  S.  371,      .  .  .  .  1710 

V.  La.  State  Ins.  Co.,  5  Martin,  N.  S.  563,      .  .  1669,  1951 

Mennett  V.  Bonham,  15  East,  477,  ....        245,245 

Merchants'  Ins.  Co.  v.  Clapp,  11  Pick.  56,      .  .  .       720,  726,  996 

Merchants' Ins.  Co.  of  Alexandria  u.  Tucker,  3  Cranch,  357,      .  1951 

Merchants'  Mut.  Ins.  Co.  v.  Ray,  1  Sandford's  R.  184  .  .  523 

V.  Wilson,  2  Maryland  Rep.  Ct.  of  Appeals,  1852, 

p.  217,  .  .  .  .  .  .  .  2173,  n. 

Mercurius,  The  (Muncher,)  1  Chr.  Rob.  288,      .  .  .         284,  791 

(Gerdes,)  1  Chr.  Rob.  80,     .  .  .      826,  829,  836 

Mere  tony  u.  Dunlop,  1  T.  R.  260,  .  .  .  .  1148 

Merriam  v.  Middlesex  Mut.  F.  Ins.  Co.,  21  Pick.  162,  .  866, 1036 

Merrimack,  The,  8  Cranch,  317,  ....        227,794 

Merry  I'.  Prince,  2  Mass.  1 76,  ....  .111,498 

Mestacr  v.  Gillespie,  11  Ves.  621,  ....      336,  2124 

Metcalfe  v.  Parry,  4  Camp.  123,       .  .         210,  1005,  1007,  1016,  1049 

Mey  V.  S.  Car.  Ins.  Co.,  3  Brevard,  329,  .  .  .  .946 

Meyer  v.  Gregson,  Marsh.  Ins.  658,  6  76  ;  3  Doug.  402,       .  .  1834 

Mickles  v.  Rochester  City  Bank,  11  Paige's  Ch.  R.  118,  351,  388,  400 

Middlewood  v.  Blakes,  7  T.  R.  162,     .  .  582,  602,  663,  992,  1001 

Mildmay  t;.  Folgham,  3  Ves.  472,  ....    104,1977 

Miles  V.  Sheward,  8  East,  7,     .  .  .  .  .  .     2014 

Millar  «.  Heinrick,  4  Camp.  155,  ....  2110 

V.  Russell,  1  Bay's  R.  309,  .....     1023 

Millandon  v.  Atlantic  Ins.  Co.,  8  La.  R.  557,  .  .  208,  489,  490 

V.  N.  O.  Ins.  Co.,  11  Martin,  N.  S.  602,         .  .  .     2161 

?;.  N.  O.  Ins.  Co.,  4  La.  Ann.  Rep.  15,    .  .  .  1097 

V.  Western  M.  &  F.  Ins.  Co.,  9  La.  R.  32,     361,  1213,  1214,  1245, 

1246, 1251, 1482, 1838 
Miller  I'.  Depeyster,  2  Caines,  301,  ....  1732 

V.  S.  Car.  Ins.  Co.,  2  M'Cord,  336,         .  .  .  .2079 

Milles  r.  Fletcher,  Doug.  219,  ....  1531,  1569,  1951 
Milliken  v.  KIdd,  4  Drury  &  Warren,  274,  ....  414 
Mills  t;.  Campbell,  2  Y.  &  C.  389,  ....  1979 

■ V.  Ladbrooke,  13  Eng.  L.  J.  (N.  S.)  Com.  PI.  125,  .  .     1960 

V.  Roebuck,  Marsh.  Ins.,  3d  ed.  124  ;  Park,  335,       .  .      699,  731 

Miltenbergher  v.  Beacom,  9  Penn.  R.  198,      .  .  .  402,  2084 

Milward  i>.  Hallett,  2  Caines,  77,  .  .  .  .        313,1564,1591 

V.  Hibbert,  3  Ad.  &  EL,  N.  S.  120,  460,  460,  985,  1282,  2031 

Miner  t;.  Taggart,  3  Bin.  204,  .  .  .  .  1183,1892,1904 

Minerva,  The,  3  Chr.  Rob.  229,     .....  278 

,6  Chr.  Rob.  396,  .  .  .  .  .257 

,  Edw.  Adm.  R.  375,  ....  249 

Minett  V.  Forester,  4  Taunt.  541,         .  .■  .  .  507,1924 

Minnett  r.  Anderson,  Park.  55  ;  Peake  Cas.  211,  .  .  1148 

Minstrel  Boy,  The,  7  Notes  of  Adm.  Cas.  341,  .  .  .      1568 

Minturn  v.  Columbian  Ins.  Co.,  10  Johns.  75,  368,  1191,  1201,  1235,  1262 
Mississippi  Ins.  Co.  v.  Stanton,  2  Smedes  &  Marshall's  R.  340,      .  752 

Mitchell  V.  Edie,  1  T.  R.  608,  .  .     1492,  1497,  1669,  1674,  1675,  1732 

V.  Glennie,  1  Starkie,  230,  ....  172fi 

V.  N.  E.  Ins.  Co.,  6  Pick.  117,  .  .  .  .    2096 

Moadinger  v.  Mechanics'  Ins.  Co.,  2  Hall,  490,       .  .  .  489 


Iviii 


TABLE  OP  CASES. 


Moffat  V.  Ward,  4  Doug.  31,  n., 

Moir  V.  Koyal  Ex.  Ass.    Co.,  4  Camp.  84  ;  G  Taunt. 

Mollison  V.  Staples,  Park,  640,  n., 
Money  v.  Union  Ins.  Co.,  4  McCord,  511, 
Montgomery  v.  Eggington,  3  T.  R.  362,  . 

V.  Shaw,  Sup.  Ct.  La.,  1851, 

V.  U.  S.  Ins.  Co.,  4  Binney,  445, 


.     064 

241;  3M.  &  S.  461, 

777 

211 

571 

.    333,  1204 

.      1099 

1674 


Montoya  v.  Lond.  Ass.   Co.,  4  Eng.  Law  &  Eq.  R.,  (Press  of  Little,  Brown 
&  Co.)  500,  .....  1138 

Montreal,  The,  Eng.  Eq.  R.  (Press  of  Little,  Brown  &  Co.,)  S.  C.  Eng.  Jur. 
538,  .......  1420 

Moody  V.  Jones,  4  B.  &  C.  394  ;  6  D.  &  R.  749,       .  .         1142,  1452 

V.  Surridge,  2  Esp.  633  ;  1  Park's  Ins.  179,  .  .  1764 

w.  Webster,  3  Pick.  424,  ....         1923,1924 

Moore  u.  Morgue,  Cowper,  479,  .  ....    1897,1899 
V.  Perpetual  Ins.  Co.,  1  Bennett's  R;  (Missouri,)  98,    .  .      1045 


V.  Protection  Ins.  Co.,  29  Maine,  R.  97, 

V.  Taylor,  1  Ad.  &  El.  25  ;  3  W.  &N.  406, 

Morck  V.  Abel,  3  Bos.  &  Pull.  35, 

Morean  v.  U.  S.  Ins.  Co.,  3  Wash.  C.  C.  R.  256  ; 

Morgan  v.  Bliss,  2  Mass.  R.  Ill, 

. '—  V.  Mather,  2  Ves.  jun.  18,  . 

• V.  Oswald,  3  Taunt.  554, 

Morish  I'.  Foot,  8  Taunt.  457, 


880,  883,  884,  888,  2099, 

2144 

963, 1963 

.      210,  1846 

1  Wheat.  219,  1615, 

1766, 1768,  1777 

.       540 

9 

245,  248 

2052 


Morn  V.  Slue,  1  Vent.  190,  238;  3  Keb.  72;  Th.  Raym.  220;  1  Danvers,  12, 

2006 
Morrice  v.  Dillon,  2  Selwyn's  N.  P.  992,     . 
Morris  v.  Cleasby,  4  M.  &  S.  566, 

V.  Robinson,  3  B.  &  Cr.  196 ;  5  D.  &  R.  35, 

v.  Summerl,  2  Wash.  C.  C.  R.  203, 


780 
.     1853 
1625 
1888,  1904 
.     648,  893 
.     1939 
1740 
.     1956 
1608,  1610 
577,  2112 
.  333,  1820 
1029, 1069,  1074 
.     1767 
Motley  V.  Manufacturers  Ins.  Co.,  29  Maine  R.  337,         '  .  1962,  1971 

Motteux  V.  London  Assurance  Co.,  1  Atk.  545,  117,  710,  720,  935,  1018, 

1937,  1939 

1501, 1648 

G90,  995,  2129 


Morrison  v.  Muspratt,  4  Bing.  60, 

V.  Noorman,  Benecke,  259,  London  ed.  1824, 

r.  Parsons,  2  Taunt.  407, 

Morton  v,  Burn,  7  Ad.  &  El.  19, 

Moses  V.  Columbian  Ins.  Co.,  6  Johns.  219, 

V.  Delaware  Ins.  Co.,  1  Wash.  C.  C.  R.  385, 

V.  Pratt,  4  Camp.  297, 

Moss  r.  Byron,  6  T.  R.  379,       . 

V.  Smith,  19  Eng.  Law  J.  R.  (n.  s.);  Cora.  PI.  226, 


Mount  V.  Harrison,  4  Bing.  388, 

V.  Larkins,  8  Bing.  108, 

V.  Waite,  7  Johns.  434, 

Moxon  V.  Atkins,  3  Camp.  200, 

Muir  v.  Fleming,  Dowl.  &  Ryl,  N.  C.  29, 

('.  United  Ins.  Co.,  1  Caincs,  54,    . 

Mullcr  V.  llartsliorn,  3  Bos.  &  Pull.  556, 

V.  Tliomson,  2  Camp.  610, 

Mnlletf  r.  Slieddon,  13  East,  .'iOl,     . 
MuniCunl  r.  Chnrcli,  ]  -Johns.  Cases,  14  7, 

/•.  Conmiercial  Ins.  Co.,  5  Johns.  262, 

V.  llallett,  1  Johns.  433,    120,  133,  318,  462, 

V.  Phoenix  Ins.  Co.,  7  Johns.  449, 


211,  211 
144,  928 
1909 
.       1465,  1666 
20G1,  2062 
217,  759 
1497,  1670,  1674 
.     1C62 
1138, 1462 
1209,1474,1503,  1657 
1158 


TABLE   OF   CASES.  lix 

Munroe  v.  Vaudam,  Park,  Ins.  133,  .  .  .        724,  725,  2152 

Munson  v.  New  England  Mar.  Ins.  Co.,  4  Mass.  R.  88,  1705,  1802,  1965 

Murdock  v.  Chenango  County  Mut.  Ins.  Co.,  2  Comst.  210,  71,  185,  873, 

904, 1032, 1964,  2123 

V.  Potts,  Marsh.  Ins.  326,         .  .  .  .  .473 

Murgatroid  v.  Crawford,  3  Dall.  491,  ....     524,  571 

Murphy  v.  Bell,  4  Bing.  567,      .  .  .  .  .  .7 

Murray  I'.  Alsop,  3  Johns.  Cases,  47,  .  .  .  .  6  71 

V.  Columbian  Ins.  Co.,  4  Johns.  443,     ....       931 

, 11  Johns.  302,  .     392,416,447,931,939 

r.  Hatch,  6  Mass.  465,  .  .        1682,1766,1767,1771,2119 

V.  Ins.  Co.  of  Pennsylvania,  2  Wash.  C.  C.  R.  186,     368,  1191,  1258, 

1453,  1505 

V.  United  Ins.  Co.,  2  Johns.  Cases,  263,  .  .  .     1662 

2  Johns.  Cases,  168,      .  627,  757,  790,  1844 


Mutual  Fire  Ins.  Co.  v.  Marseilles,  1  Gillman,  237,  .  1947,  1950 

Mutual  Safety  Ins.  Co.,  r.  Cargo  of  Ship  George,  Dist.  Ct.  U.  S.,  8  Law  Rep. 

361;  N.  Y.  Legal  Observer,  for  1845,  260,     .  .       1315,1375 

Mutual  Safety  Ins.  Co.,  v.  Cohen,  3  Gill  &  Johns.  45,         .  .  1497 

17.  Hone,  2  Comst.  235,       122,  499,  1264,  1752,  1753 

Myer  v.  Vander  Deyl,  Abbott  on  Shipping,  355,  .  .  .     1282 

N. 
Naiade.     See  Nayade. 
Nancy,  The,  3  Chr.  Rob.  122,        .  .  -  .  .     222,  281 

1  Acton's  Appeal  Cases,  57,         .  .  .  .       826 

Nantes  V.  Thompson,  2  East,  385,  .  .  .  .  1109,2018 

Natchez  Ins.  Co.  v.  Buckner,  4  Howard,  63,    . 

V.  Stanton,  2  Smedes  &  Marsh.  340,    1002, 1050,  1052,  1474 

Nathaniel  Hooper,  The,  3  Sumner,  542,    .  1291, 1294, 1301, 1318,  1386 

Natta  I'.  Mutual  Security  Ins.  Co.,  2  Sandford's  490,   .  .  .424 

Nayade,  The,  4  Chr.  Rob.  251,      .  .  .  .  .  165 

N^or  V.  Palmer,  21  Eng.  Law  &  Equity  R.  (Press  of  Little,  Brown  &  Co.) 
P  356;  S.  C,  22  Eng.  Law  J.,  (n.  s.)  Exch.  329,     .  .     1106 

Taylor,  9  B.  &  C.  718,  .         840,1051,1129,1594,1663,1704 


Neal  I'.  Irving,  1  Esp.  R.  61,  .  .  .  .  .  2114 

Neale,  Adm'r  of  Whittle,  v.  Reid,  1  B.  &  C.  657 ;  3  D.  &  R.  158,  .  296 
Neely  v.  Onondago  County  Mut.  Ins.  Co.,  7  Hill,  50,         .  .     523,  904 

Negocie  en  Zeenvaart,  1  Chr.  R.  Ill,  .  .  .  .797 

Neilson  v.  Columbian  Ins.  Co.,  3  Caines,  108 ;  1  Johns.  301,    1000, 1767, 1951, 

2147 

f.  Dela  Cour,  2  Esp.  l319,  ....  960 

17.  Louisiana  Ins.  Co.,  5  Martin,  N.  S.  289,      .  .  593,  1765 

Nelson  17.  Salvador,  Dans.  &  Lloyd,  219  ;  1  Moody  &  Malk.  309,    .  773 

Nelson,  The,  3  Hagg.  Adm.  R.  167,     .  .  .  .  .1568 

Neptune,  The,  1  Hagg.  227,  .....   212,1719 

Neptune  Ins.  Co.  v.  Robinson,  11  Gill  &  Johns.  256,    .  .  .537 

Neptunus,  The,  (Knyp),  2  Chr.  Rob.  110,  .  .  271,  829,  829 

The,  (Kugh),  1  Chr.  Rob.  170;  S.  C,  3  id.  173,         829,  830,  836 

Nereide,  The,  9  Cranch,  388,  .....  824,  2106 

Nesbitt  V.  Lushington,  4  T.  R.  783,  .  1106,  1110,  1335,  1761,  2022 

Neutralitct,  The,  (Burning),  3  Chr.  Rob.  295,  .  .  .216 

(Zeverver),  6  Chr.  Rob.  30,       ...  841 

Neve  V.  Columbia  Ins.  Co.,  2  McMullan,  220,  ....  1946 
Neville  v.  Merchants'  Manuf.  Ins.  Co.  of  Cincinnati,  17  Ohio,  192,  15,  1936 
Newbury  17.  Colvin,  7  Bing.  190,    .....  1083 

Newburyport  Ins.  Co.  17.  Oliver,  8  Mass.  402,  .  .  .  .     1815 


Ix 


TABLE   OF   CASES. 


Newby  V.  Reed,  1  Bl.  416,       .  3G1,  1099,  1837,  1838,  1961,  2139,  2146 

JSTewcastle  Fire  Ins.  Co.  v.  McMorran,  3  Dow,  255,      637,  637,  755,  762,  870 
Newell  V.  Griswold,  6  Jolins.  45,    .  .  .  .  .  2147 

New  England  Mar.  Ins.  Co.  v.  Brig.  Sarali  Ann,  13  Peters's  Sup.  Ct.  11.  387, 

1578 

V.  Butler,  Sup.  Ct.  Maine,  1853,    110,  413  a,  698 

Newhall  v.  Vargas,  13  Maine  (1  Shepley's)  R.  93 ;  15  Maine,  (3  id.)  314,    197 
Newland  v.  Horseman,  1  Vernon,  20,         .  .  .  ,  2105 

Newley  v.  Reed.     See  Neichy  v.  Pteed. 
Newman  t-.  Cazalet,  Marsh.  76  ;  Park,  900, 
Walters,  3  B.  &  P.  612, 


.  .      133, 1414,  1416 
.     1559 
Newson's  Adm'rs  v.  Douglas,  7  Har.  &  Johns.  417,  .        383,  385,  1966 

New  York  Bowery  Ins.  Co.  v.  New  York  Fire  Ins.  Co.,  17  Wend.  359,     377, 

498,  546,  587,  1807,  1982 


New  York  Equity  Fire  Ins.  Co.  v.  Langdon,  6  Wend.  623, 
New  York  Firemen  Ins.  Co.  v.  Delavan,  8  Paige,  Ch.  R.  419, 

V.  De  Wolf,  2  Cowen,  56,      . 

V.  Ely,  2  Cowen,  678,      . 

V.  Lawrence,  14  Johns.  46,    . 

V.  Sturges,  2  Cowen,  664, 

i^.Walden,  12  Johns.  513,     . 


883 

887,  2081 

600, 2109 

11 

966 

11 

524, 1948 

New  Y^ork  Gas  Light  Co.  v.  Mechanics'  Fire  Ins.  Co.,  2  Hall's  R.  108,     639, 

2119 
New  York  Ins.  Co.  v.  Robinson,  1  Johns.  616,  ,  .         311,  1658 

V.  Roulet,  24  Wend.  505,         .  .  1713,  1939 

V.  Thomas,  3  Johns.  Cases,  1,         .  133,  145,  1839 

New  York  State  Mutual  Co.  v.  Protection  Ins.  Co.,  1  Story's  R.  458,      2045, 

2145,  2173 
Niagara  Ins.  Co.  v.  Scale,  2  Hall's  R.  22,  .  ,  .  .  950 

Nibk)  V.  North  American  Fire  Ins.  Co.,  1  Sandford,  551,    181,  462,  640,  872, 

1129,  1484 


Nichols  V.  Johnson,  10  Conn.  R.  192,    . 

Nickels  v.  Maine  F.  &  M.  Ins.  Co.,  11  Mass.  253,   . 

Nickleson  v.  Croft,  2  Burr.  1188, 

Nicolet  u.  Ins.  Co.,  La.  R.  371,       .  .  . 

Nicol  V.  Goodall,  10  Ves.  157,    .... 

NicoU  V.  American  Ins.  Co.,  3  Woodbury  &  Minot,  529,    . 

Nimrod,  The,  Ware's  R.  14,      . 

Noble  V.  Kennoway,  1  Doug.  492,  .  .  .    133,  138, 

Nonnen  v.  Reid,  and  Same  PI'ITd.  Kettlewell,  16  East,  176, 

Norris  v.  Harrison,  2  Madd.  268, 

V.  Ins.  Co.  of  North  America,  3  Yeates,  84,  . 

North  River  Ins.  Co.  v.  Lawrence,  3  AVend.  482, 

Norton  /;.  Rensselaer  and  Saratoga  Ins.  Co.,  7  Cow.  645,  . 

Norvillc  r.  St.  Barbc,  5  B.  &  P.  434,     . 

Nuova  Loancse,  17  Eng.  Jur.  263, 

Nutt  V.  Bourdicu  1  T.  R.  323, 


45 

1431 

2016,  2p23 

1481 

.       320 

568,  667,  872a 

.     1280 

970,  998,  1003 

527,  861,  939 

104, 1977 

66 

11 

1811,  1983 

.       247 

301 

.     1077 


o. 


Ocean,  The,  5  Chr.  Rob.  90, 
3,Clir.  Rob.  297, 


.  ,1  159 

.     828,  844 

Ocean  Ins.  Co.  v.  Carrington,  3  Conn.  R.  357,  .  .  18,  1466,  1788 

V.  Field,  2  Story's  C.  C.  R.  59,         .  .  .  2080 

?•.  Francis,  2  Wend.  64,  .  1060,  1803,  2108,  2122 

r.  Pollcys,  13  Peters's  Sup.  Ct.  R.  157,       .         195,  221,  265 

Oddy  V.  Bovill,  2  East,  4  73,       ......     2104 

Odin,  The,  1  Chr.  Rob.  218,  .....  223 


TABLE   OF   CASES.  Ixi 

Odlin  V.  Ins.  Co.  of  Pennsylvania,  2  Wash.  C.  C.  R.  312,         913,  1111,  1620 
Ogden  V.  Ash,  1  Dall.  162,        .  .         *  .  .  .  .859 

V.  Barker,  18  Johns.  87,       .  .  .  ,  .  253 

V.  Columbian  Ins.  Co.,  10  Johns.  273,    .  .  1201,  1202,  1669 

V.  N.  y.  Eiremens'  Ins.  Co.,  10  Johns.  177  ;  12  id.  25,  114,    913,  1111, 

1699,  1841 
Ogle  V.  Wrangham,  Abbott  on  Shipping,  5th  ed.  76,     .  .  .     1851 

Ohl  r.  Eagle  Ins.  Co.,  4  Mason,  172,  390,   ....   265,2124 
Oldden  v.  M'Chesney,  5  Serg.  &  Rawle,  71,      .  .  .  830,  842 

Oldman  V.Bewick,  2  II.  Bl.  577,  n.,  ....     70,2130 

Olive  V.  Smith,  5  Taunt.  56,       .  .  .  ,  1911,  1913,  1923 

Oliver  i\  Cowley,  Park,  343;  Marsh.  161,  .  ...  695 

r.  Green,  3  Mass.  133,     ....        325,419,480,583 

V.  Maryland  Ins.  Co.,  7  Cranch,  487,  .  .  1002,  1023 

I,'.  Newburyport  Mar.  Ins.  Co.,  3  Mass.  37,         .  .        1590,1591 

Olivera  u.  Union  Ins.  Co.,  3  Wheat.  183,  .      830,840,1111,1114,1116 

Oliverson  v.  Brightman,  8  Ad.  &  El.  N.  S.  781,      .  .  .     963,  983 

V.  Loughman,  2  B.  &  A.  322,  .  .  .  .720 

O'Mealy  v.  Wilson,  1  Camp.  482,    .....  153 

Omnibus,  The,  6  Chr.  Ptob.  71,  .  .  .  .  .256 

O'Neil  V.  Bufialo  Fire  Ins.  Co.,  3  Comst.  123,    872,  883,  885,  889,  1038,  1812, 

1813 
Oom  V.  Bruce,  12  East,  225,  .  .  .  .  .  1846 

V.  Taylor,  3  Camp.  204,     ......     1160 

O'Reilly  V.  Gonne,  4  Camp.  249,     ....  1023,  1025 

V.  Royal  Exch.  Ass.  Co.,  4  Camp.  246,  .  .       1025,  1025 

Oriental,  The,  2  Eng.  Law  &  Equity  R.  (Press  of  Little,  Brown  &  Co.)  549 ; 
S.  C,  U^Eng.  J.  336,     .....  1568 

Oriental  Bank  u.  Tremont  Ins.  Co.,  4  Mete.  1,  .  .  .       2147,2147 

Orozembo,  The,  6  Chr.  Rob.  430,    .....  825 

Orrok  V.  Commonwealth  Ins.  Co.,  21  Pick.  456,  1087,  1326,  1424,  1432, 

1433,  1539,  1548,  1551,  1552,  1571,  2096,  2112 
Osacar  v.  Louisiana  Ins.  Co.,  5  Martin,  N.  S.,  386,        .  .         970,  2147 

Osborne  v.  Rogers,  1  Saunders,  268,  ....  2029 

Osmandi,  The,  4  W.  Rob.  198  ;  7  Notes  of  Admiralty  Cases,  322,        .     1568 
Ospray,  The  1  Chr.  Rob.  14,     .  .  .  •  .  258,  814 

OsterRisocr,  The,  4  Chr.  Rob.  199,  ....  249 

Oswell  V.  Vigne,  15  East,  70,     .  .  ,  .  .  .       809 

Otis  V.  Raymond,  3  Conn.  R.  413,  .  .  .  .  .  540 

Ougier  V.  Jennings,  1  Camjo.  505,  n.,    134, 140,  593,  690,  998,  1003, 1944,  1953 
Ovington  v.  Bell,  3  Camp.  237,  .....     1883 


Pacific  Ins.  Co.  v.  Catlett,  4  Wend.  75,      1628,  1673,  1966,  2021,  2122,  2147 
Packard  v.  Hill,  2  Wend.  411,         .  .  .  .  .  2110 

Packet,  The  Ship,  3  Mason,  255,        302,  306,  523  a,  1249,  1352,  1524,  1563, 

1847  b,  1934,  1985,  2010,  2149 
Packet  de  Bilboa,  The,  2  Chr.  Rob.  133,  .  .  .  260,  792,  793 

Paddie  v.  Quebec  Fire  Ins.  Co.,  Stuart,  174,  .  .  .  1481 

Paddock  v.  Franklin  Ins.  Co.,  11  Pick.  227,         454,  720,  720,  727,  728,  731, 

735,  925,  2079,  2152 
Padelford  u.  Boardman,  4  Mass.  548,  .....  1328 
Page  V.  Fry,  3  Esp.  185  ;  2  B.  &  P.  240,     ....  2021 

V.  Rodgcrs,  Marshall  on  Insurance,  731,   ....     2143 

V.  Thompson,  1  Park,  8th  ed.  175,       ....   913,  1111 

V.  Western  Ins.  Co.,  19  La.  R.  49,  .  .  .  .       288 

VOL.    I.  / 


Ixii  TABLE   OF   CASES. 

Paine  v.  Columbian  Ins.  Co.,  2  Johns.  264, 


V.  Mclntire,  1  Mass.  69,  f 
Palm  V.  Medina  Ins.  Co.,  20  Ohio  K  529, 
Palmer  v.  Blackburn,  1  Bing.  61, 

V.  Penning,  9  Bing.  460, 

V.  Lorillard,  16  Johns.  348, 

V.  Marshall,  8  Bing.  79, 

V.  Pratt,  2  Bing.  185,     . 

V.  Warren  Ins.  Co.,  1  Story,  360, 


999 

66 

16 

470,  1238,  2120 

.  992,  1002 

.  1650 

.   992,  1002,  2113 

203,  459 

131,  760,  1162,  1163 

Paradise  v.  Sun  Mut.  Ins.  Co.,  6  La.  Annual  R.    91,  395,  398,  420,  477,  1083, 

1238,  1711,  2003,  2052 
Parage  i'.  Dale,  3  Johns.  Cases,  156,  ....  1531,  1532 
Parfitt  V.  Thompson,  13  Mees.  &  Wels.  392,  .  .  .  698 

Paris  V.  Gilham,  Cooper's  Ch.  Cases,  56,  .  .  .  16,  1978 

Parish  v.  Crawford,  Abbott  on  Shipping,  5th  ed.  19,  .  .  1083 

Park  I'.  Hammond,  2  Marsh.  R.  189 ;  6  Taunt.  495 ;  1  Holt,  80;  4  Camp.  344, 

931,  1884,  1892 
Parker  v.  Beaslie,  2  M.  &  S.  423,  .  .  .  .         507,  1925 

V.  Carter,  Cook's  Bankrupt  Laws,  547,        .  .  .  1923 

-^ u.  James,  4  Camp.  112,  .....     2004 

V.  Jones,  13  Mass.  173,         .  .  .        583,  1117,  1117,  1965 

V.  Potts,  3  Dow,  23,        .  .     •        .  .  .  .724 

V.  Smith,  16  East,  382,         .  .  .        507,  1877,  1924,  1927 

V.  Towers,  2  Browne,  Ap.  80,    .  .  .  .       1703,  1881 

Parkin  v.  Dick,  2  Camp.  221;  11  East,  502,  ...  232 

V.  Tunno,  2  Camp.  59;  11  East,  22,      .  .  .       1115,  1115 

Parkinson  v.  Collier,  1  Park  on  Insurance,  470,     .  .  145,  970,  998 

Parkman  v.  Allen,  1  Stair's  Dec.  29  ;  S.  C,  6  Chr.  Rob.  382,  .  .       281 

Parks  V.  General  Interest  Ins.  Co.,  5  Pick.  34,        .  .  .      490,  752 

Parmeter  v.  Cousins,  2  Camp.  235,         ....   720,  720,  934 

V.  Todhunter,  1  Park  on  Insurance,  280 ;  1  Camp.  541,    1500,  1630, 

1678,  1682 
Parr  v.  Anderson,  6  East,  202;  2  Smith,  316,        .  .  .    144,  1030 

Parrott  u.  Thatcher,  9  Pick.  426,  .  .  .  .  .2119 

Parry  v.  Aberdein,  9  B.  &  C.  411,  .  .         1766,  1767,  1769,  1771,  1772 

V.  Ashley,  3  Simmons,  97,  .  .  .  •         104,1976 

Parsons  u.  Massachusetts,  F.  &M.  Ins.  Co.,  6  Mass.  197,     .  941,970,970 

V.  Scott,  2  Taunt.  363,  ......     1662 

Patapsco  Ins.  Co.  v.  Coulter,  3  Peters's  Sup.  Ct.  R.  222,     .    318,  1049,  1074, 

1096,  1209,  1474 

V.  Piscoe,  7  Gill  &  Johns.  293,    .  .  1208,  1208 

V.  Smith,  6  Harr.  &  Johns.  166,         .  .         517,  1849 

V.  Southgate,  5  Peter's  Sup.  Ct.  R.  604,    1497,  1524,  1539, 

1680, 1682 
Patterson  v.  Powell,  9  Bing.  320 ;  2  M.  &  Scott,  399,         .  .  3 

Patrick  v.  Commercial  Ins.  Co.,  11  Johns.  9,     .  1129, 1137,  1162,  1526 

11  Johns.  14,  .  .  .  1137 

V.  Kamcs,  3  Camp.  441,  .  .  .  .  332,  333 

V.  Ilallett,  3  Johns.  Cas.  763  ;  1  Johns.  R.  241,  699,  2085,  2152 

.: V.  Ludlow,  3  Johns.  Cas.  10,  .  .  .     932,  1023,  2085 

Patterson  y.  Black,  Marsh.  Ins.,  2d  cd.  781,       .  .  .      1149,1951 

V.  Gandascciui,  15  East,  62,  ....  1849 

V.  Maryland  Ins.  Co.,  3  Harris  &  Johns.  71,  .  .   2095 

V.  liitchic,  4  M.  &  S.  393,  .  .  .  1663,  1704 

Patli-oM  V.  Mills,  ]  Dow  .Sc  Clark,  342  ;  2  Bligh.  N.  S.  519,         .  .  1094 

Patton  V.  Nicliolson,  3  Wheat.  201,  ....    214,  219 

V.  Jcnncy,  2  (Jranch  C.  C.  R.  7,  ....  2055 

Pawson  V.  Barnevelt,  1  Doug.  12,  n.,  ....  145 


TABLE   OF   CASES.  Ixiii 

Pawson  V.  Watson,  Cowp.  785;  Doug.  12,  n.,       527,  545,551,  554,  G69,  762, 

1892 
Payne  v.  Hutchinson,  2  Taunt.  405,  n.,  .  .  .  .      931 

V.  Rogers,  2,  H.  Black.  349  ;  1  Doug.  391,  .  .       66,  2060,  2160 

Payton  u.  Hallett,  1  Caines,  363,  .  .  •  .  .2126 

Peabody  v.  Mar.  Ins.  Co.  of  Salem,  before  Referees,  Boston,  1839,  333, 

1203 

Peale  v.  Waddington,  7  Taunt.  478,  ,  .  .  .  2044 

Pearson  r.  Lord,  6  Mass.  81,      .....  380,391 

Peele  v.  Merchants'  Ins.  Co.,  3  Mason,  27,  1267,  1267,  1431,  1492,  1524, 

1526,  1539,  1543,  1547,  1556,  1557,  1691,  1693,  1705,  1940 

r.  Northcote,  7  Taunt.478,  ....     1853,1924 

V.  Suffolk  Ins.  Co.,  7  Pick.  254,  .  .  1143,  1559,  1693 

Pierce  v.  Ocean  Ins.  Co.,  18  Pick.  83,     .  1575,  1578,  1681,  1682,  1684 

Pisch  V.Dixon,  1  Mason,  10,  .....  126 

Pelly  V.  Royal  E.>:ch.  Ass.  Co.,  1  Burr.  341,       .  .  975,  1019,  1099 

Pellican,  The,  Edw.  Adm.  R.  App.  D.,         .  .  .  .  224 

Penhallow  v.  Doane's  Administrators,  3  Dal.  54,  .  .  .  2109 

Penn,  (The  Wm.,)  Peters's  C.  C.  R.  lOG,    .  .  .  .         1568 

Penniraan  V.  Tucker,  11  Mass.  66,  ....  1844 

Pennington  Adm'r  v.  Gettings  Ex'r,  2  Gill.  &  Johns.  208,    .  .  79 

Pennsylvania,  The,  3  Act.  31,     ......    818 

Pennsylvania  Ins.  Co.  v.  Smith,  3  Whart.  R.  520,    .  .  516,  517 

Penny  v.  New  York  Ins.  Co.,  3  Caines,  155,       .  1332,  1332,  1347,  1662 

Penson  17.  Lee,  2  B.  &  P.  330,  .  .  .  .  .  2173  n, 

Pentz  V.  Receivers  of  the  JEtna  Ins.  Co.,  9  Paige's  Ch.  R.  569,      1484,  1711, 

1749,  1795  a.,  2144 
Peppin  u.  Solomons,  5  T.  R.  496,  ....  2021 

Perchard  v.  AVhitmore,  2  B.  &  P.  155,  n.,     .  .  .  379,  2021 

Perkins  v.  New  England  Mar.  Ins.  Co.,  12  Mass.  214,     .         367,  1125,  1251 

I'.  Washington  Ins.  Co.,  4  Cow.  645,        1848,  1880,  1892,  1936,  1991 

V.  AVashington  Ins.  Co.,  6  Johns.  Ch.  R.  485,  .  .     11,  20 

Perrin's  Administrator  v.  Prot.  Ins.  Co.,  11  Ohio  R.  147,  .    1049,  1099 

Pervis  v.  Tunno,  1  Brevard's  R.  261,  ....        1054 

Perry  v.  Ohio  Ins.  Co.,  5  Ohio  R.  306,     ....  1429 

Peters  v.  Delaware  Ins.  Co.,  5  Serg.  &  Rawle,  473,  .  .  .        1251 

V.  Milligan,  Millar  on  Ins.  244  ;  Park,  211,  .  .    1397,  1400 

V.  Phoenix  Ins.  Co.,  3  Serg.  &  Rawle,  25,     699,  735,  1129,  1532,  1555, 

1741 

V.  Warren  Ins.  Co.,  14  Pet.  S.   C.  R.  99  ;  3  Sumn.  389 ;  1  Story,  463, 

1099,  1137,  1272,  1326,  1416,  1423,  1436,  1781 
Peterson  u.  Grover,  20  Maine  R.  363,  ....        1986 

Petrie's  Executors  v.  Aitchison,  3  Session  Cas.  501,        .  .  1893 

Peyton  v.  Ilallet,  1  Caines,  363,  .  .  .  .  .        2101 

Pezant  v.  National  Ins.  Co.,  15  Wend.  453,  .         1532,  1543,  1545,  1555 

Phelps  V.  Auldjo,  2  Camp.  350,  ....  984,  1023 

Philips  V.  Baillie,  3  Doug.  374,     .  .  .  .  .  2005 

y.  Barber,  5  B.  &  A.  161,        ....  1126,2022 

u.  Crawley,  Freeman,  83,  .....  2105 

v.  Knox  County  Mut.  F.  Ins.  Co.,  2  Ohio  R.  1 74,     .  .  641 

Phillips  V.  Bridge,  11  Mass.  242,  .  .  .  .  .   2053 

V.  Champion,  6  Taunt.  3 ;  1  Marsh.  402,      .  .  .  964 

V.  Eastwood,  Lloyd  &  Goold,  291,         .  .  .  .94 

V.  Protection  Ins.  Co.,  14  JMissouri  R.  (by  Gardenshire,)  220,       884, 

886  a.,  1097,  1810,  1811,  1813,  1953 

V.  Headlam,  2  B.  &  A.  380,  ....     715,  716 

V.  Hunter,  2  H.  Bl.  409,  .....     2104 

V.  Laidley,  1  Wash.  C.  C.  R.  226,  .  .  .  2124 


Ixiv  TABLE   OF   CASES. 

Phillips  r.  Nairne,  16  Law  J.  (Eng.)  Com.  PI.  194,      .  698,752,1137 

V.  Fielding,  2  IL  Bl.  131,  ....  2014 

Philliter  I'.  Shippand,  12  English  Jurist,  203,  .  .  .      2003 

Phoenix,  The,  5  Chr.  Rob.  20,      ,  .  .  .  278,  800,  815 

Phoenix  Fire  Ins.  Co.  v.  Gurnee,  1  Paige,  278,  .  .  117,  120 

Phoenix  Ins.  Co.  v.  Pratt,  2  Binney,  308,  .  .  .  .  810 

I'.  Fiquet,  7  Johns.  K  383,     ....     1926 

V.  Philip,  13  Wend.  81,  .  .  .  .  2112 

Phyn  V.  Royal  Exch.  Ass.  Co.,  7  T.  R.  505,    .  .  1051,  1062,  1063 

Pickering  u.  Do wson,  4  Taunt.  779,  ....  660 

Pieschell  v.  Allnutt,  4  Taunt.  792,       .....  232 

Pigott  V.  Thompson,  3  B.  &  P.  147,  .  ,  ,  ,  1959 

Pim  V.  Reid,  6  M.  &  Gr.  1,  .         635,  688,  866  a.,  871,  874,  2122,  2128 

Pipon  V.  Cope,  1  Camp.  434,  •  .  .  .     195,  1072,  1076,  1081 

Pirie  r.  Anderson,  4  Taunt.  652,  .  ....  2124 

V.  Steele,  8  C.  &  P.  200  ;  2  Moody  &  Rob.  49,  .  .        1431 

Pitman  v.  Hooper,  3  Sumn.  50,     .  .  .  .  .  171& 

Pitt  v.  Yalden,  4  Burr.  2060,  .  ....  1884,1885 

Pittigrew  t;.  Pringle,  3  B.  &  Ad.  514,        ....  772,773 

Pizarro,  The,  2  Wheat.  227,  .  .  .  .  •  818,2082 

Place  V.  Delegal,  0  S.  C.  492,       .  .  .  .  .  .126 

Planche  y.  Fletcher,  Doug.  238,  ,  .  147,593,599,993,1093 

Plantamour  v.  Staples,  3  Doug.  1  ;  1  T.  R.  611,  n.,  .  .        699,  9ia 

Planter's  Wench,  The,  5  Chr.  Rob.  22,  .  .  .  .  248 

Pleasants  v.  Maryland  Ins.  Co.,  8  Cranch,  55,     .  368,  1191,  1262,  1715 

Plummer  v.  Wildman,  3  M.  &  S.  482,  .      1104,  1300,  1320,  1320,  1328 

Poinijdestre  u.  Royal  Exch.  Ass.  Co.,  Ryan  &  Moody,  3  78,       .  .     1431 

Pole"!).  Fitzgerald,  Willes,  644  ;  Ambler,  214;  4  Bro.  P.  C.  439;  5  id.  131, 

1521,  1522,  1531,  1555 
Pollard  V.  Bell,  8  T.  R.  434,  .  .  .  .  .  2109 

Pollers  v.  Ocean  Ins.  Co.,  2  Shepley,  141,         .  .  .    195,751,852 

Pollock  t'.  Babcock,  6  Mass.  234,     ....       595,1117,1118 

?;.  Donaldson,  3  Dall.  510,         .  .  .  502,1829,1833 

PoUv,  The,  2  Chr.  Rob.  3G1,  .  .  .  .  .  278 

Pond  t;.  King,  1  AVilson,  191,  .  .....       1521 

1).  Smith,  4  Connecticut,  217,  .  .  .  .  .283 

Pontalba  V.  Phoenixins.  Co.,  2  Rob.  R.  (La.)  131,     .  .  .        1484 

Pontz  V.  Louisiana  Ins.  Co.,  4  Martin's  R.  N.  S.  80,         .  .  1843 

Polvart  V.  Leckie,  6  M.  &  S.  290,     ....  1846,  1846 

Poole  V.  Prot.  Ins.  Co.,  14  Connecticut,  33,         .  .        1766,  1767,  1772 

Pope  V.  Nickerson,  3  Story's  R.  466,  .  .  1168,  1623,  1625 

Popleston  V.  Kitchen,  3  Wash.  C.  C.  R.  138,       .  .  ,       686,  2152 

Porter  v.  Bussey,  1  Mass.  436,  .....         1844 

Portsmouth  Ins.  Co.  I'.  Brazee,  16  Ohio  R.  81,  .  .  .1749 

Portland,  The,  3  Chr.  Uob.  41,        .  .  .  .  .  814> 

Post  r.  Ilampsliire  Mtit.  Fire  Ins.  Co.,  12  Mete.  555,     .  .  .      877 

V.  Kimljcrly,  9  Johns.  R.  479,  ....  1852 

V.  IMidnix  Ins.  Co.,  10  Johns.  79,  ....     1195 

Posten,  Tlie,  1  Clir.  Rob.  335,  .....  837 

Pottcri;.  Marine  Ins.  Co.,  2  Mason,  475,  .  .  .  365,1253 

V.  Ocean  Lis.  Co.,  3  Sumn.  27,         .  .        1129,  1129,  1274,  1326 

V.  Ontario  and  Livinirston  Ins.  Co.,  5  Hill,  147,  67,  131,  536,  881 

V.  Prov.  Wasli.  Ins.  Co.,  4  Mason,  298,        .        1349,  1388,  1742,  2044 

J'.  Suflblk  Ins.  Co.,  2  Sum.  19  7,  ....      1053 

Potts  T>.  Bell,  8  T.  R.  548;  2  Esp.  612,      ....       147,223 
Pouvcriii  V.  La.  State  F.  &  M.  Ins.  Co.,  4  Rob.  R.  (La.)  234,  388,  1004 

Powell  J).  Gudgeon,  5  M.  &  S.  431,  .  .  .      1139,1363,1367 

Power  V.  Butclier,  10  15.  &  C.  329  ;  5  Man.  &  R.  327,  516,  1849,  1993 


TABLE    OP   CASES. 


Ixv 


Power  V.  Ocean  Ins.  Co.,  19  La.  R.  28, 

V.  Whitmore,  4  M.  &  S.  141, 

Powles  V.  Innes,  11  Mees.  &  Wels.  10, 
Fowling  V.  Wilson,  1  Johns.  192,  . 
Pratt  1-.  Ashley,  1  Exchequer  R.  257, 

V.  Phoenix  Ins.  Co.,  1  Brown,  267, 

Pray  v.  Edie,  1  T.  R.  313,      . 
Prescott  V.  Union  Ins.  Co.,  1  Whart.  R.  399, 
President,  The,  5  Chr.  Rob.  277, 
Preston  v.  Greenwood,  4  Doug.  28, 
Price  V.  Bell,  1  East,  663, 

V.  Depeau,  1  Brev.  452, 

V.  HoUis,  1  M.  &  S.  105,  ": 

u.  Noble,  4  Taunt.  123, 

Prince,  The,  4  Moore  Appeal  Cas.  21, 

Prince  of  Saxe  Coburgh,  The,  3  Moore's  Cases  before 

Princessa,  The,  2  Chr.  Rob.  49, 

Pringle  v.  Hartle,  3  Atk.  195,         . 

Pritchett  v.  Ins.  Co.  of  N.  America,  3  Yeates,  461, 

Progress,  The,  Edward's  Adm.  R.  210, 

Providence  County  Bank  v.  Benson,  24  Pick.  204, 

Providentia,  The,  2  Chr.  Rob.  142, 

Prudham  v.  Phillips,  Amb.  763,  .  .      , 

Pugh  V.  Leeds,  Cowp.  714, 

Puller  V.  Glover,  12  East,  124, 

V.  Halliday,  12  East,  494,  . 

u.  Staniforth,  11  East,  232, 

Putnam  v.  Mercantile  Marine  Ins.  Co.,  5  Mete.  386 
V.  Wood,  3  Mass.  R.  481, 


. 

880 

.   467,  1328, 

1414 

.   87,  89 

, 

2104 

1012, 

1015 

265 

,  293 

.   382,  382 

,  382 

.   695, 

1947 

159 

,  159 

126 

945, 

2109 

589 

. 

2105 

1293 

•     •      • 

523  a 

ore  the  Privy  Council,  1, 

1847  b 

. 

275 

.  815, 

1531 

211 

,  462 

. 

1385 

.   91,  18£ 

,401 

, 

.  278 

. 

2105 

. 

921 

1519, 

2023 

.  336, 

1725 

336, 

1519 

,    .      .  310, 

1225 

731, 

1115 

Queen's  Case,  The,  3  Starkie's  Ev.,  Am.  ed.  of  1828,  p.  1742,  .  .  2103 

Queen  v.  Union  Ins.  Co.,  2  Wash,  C.  C.  R.  331,  1531,  1535,  1590,  1662 


R. 

Rachel,  The,  3  Chr.  Rob.  29,  .  .  .  .  .165 

Radcliff  V.  Schoolbred.     See  RatcUffe. 

V.  U.  S.  Ins.  Co.,  7  Johns.  38  ;  9  id.  277,        826,  826,  829,  834,  1159 

Rafferty  v.  N.  Brunswick  F.  Ins.  Co.,  3  Harrison,  480,     .  .     882,  1038 

Raine  v.  Bell,  9  East,  195,     ,  .  .  .  .  .999 

Ralston  u.  Union  Ins.  Co.,  4  Binney,  386,  .  .      1532,  1580,  1684 

1940 

1724 

281 

793, 1857, I860 

.       271,  272,  284 

145,  1472,  2052,  2134 

1008 

.    2116 

.     223,  226 

.      825 

550,  567, 

619 

1916 


Ramsay  v.  Allegre,  12  Wheat.  638, 
Randall  v.  Cochrane,  1  Ves.  98,  . 
Randers  Bye,  The,  6  Chr.  Rob.  382  n., 
Randolph  v.  Ware,  3  Cranch,  503, 
Ranger,  The,  6  Chr.  Rob.  125, 
Rankin  v.  American  Ins.  Co.,  1  Hall,  619, 

V.  Reeve,  2  Park,  7th  ed.  415, 

Rapage  v.  Amory,  2  Dal.  51,  231,  .... 

Rapid,  The,  8  Cranch,  155  ;  1  Gallison,  295, 

Edw.  Ad.  R.  228,     ..... 

Ratcliffe  v.  Shoolbred,  Park,  290 ;  1  id.,  8th  ed.  413  ;  Marsh.  468, 

Rathbone  v.  Williams,  7  T.  R.  360,  n.,  .  .  . 


JXVI  TABLE   OP   CASES. 

Rawlins  v.  Desborough,  8  C.  &  P.  321  ;  2  Mood,  &  Rob.  70,  328,     653,  655, 

656,  2122 
Rawllnson  v.  Janson,  12  East,  223,  ....  245 

Raymond  v.  Squire,  11  Johns.  47,       .  .  .  .  .        2060 

Rayner  v.  Godmond,  5  Barn.  &  Aid.  225,  .  .  .  1758 

Raynham  v.  Canton,  3  Pick.  293,       .....         2110 
Read  v.  Bonham,  3  B.  &  B.  147  ;  6  Moore,  397,  1534,  1669, 1678,  1875 

r.  Isaacs,  6  Moore,  437,        .  .  .  .  ,  1989 

Reade  v.  Com.  Ins.  Co.,  3  Johns.  352,  .  .  1023,  1357,  1985 

Rebecca,  The,  2  Chr.  101,  .  .  .  .  .  .278 

Redman  v.  Lowdon,  5  Taunt.  462 ;  3  Marsh,  R.  136  ;  3  Camp.  503,  66, 

1041 

V.  Wilson,  14  Mees.  &  Welsby,  476,  .  .  735,  1049 

Redmond  v.  Smith,  7  Manning  &  Gr.  457,  .  ,  210,  1043,  2029 

Reed  v.  Cole,  3  Burr.  1512,    .  .  .89,  186,  187,  188,  498,  2021 

V.  Pacific  Ins.  Co.,  1  Mete.  166,        ,  .  .  .    1881,  1915 

Reeside,  The  Schooner,  2  Sumn.  567,  ,  .  .  .133 

Reeves  v.  Ship  Constitution,  Gilpin's  R.  579,       .  .  .  1420 

Regnier  v.  Louisiana  State  M.  &  F.  Ins.  Co.,  12  La.  Rep.  336,        2080,  2154 
Reid  V.  Darby,  10  East,  143,  .  .  ,  .  .         1587 

r.  Harvey,  4  Dow's  Rep.  97,  .  .  .  ,  .     527 

Reimer  v.  Ringrose,  4  Enfj.  Law  &  Eq.  R.   (Press  of  Little,  Brown  &  Co.,) 
388;  20  L.  jour.  Rep.  Exch.  175,  .  .  .1770 

Rendsborg,  The,  4  Chr.  Rob.  121,  .  .  .  .  .278,815 

Rennerr.  Bank  of  Columbia,  9  Wheat.  581,       .  .  ,         133,138 

Reyner  u.  Hall,  4  Taunt.  725,  ....  1815,1817 

V.  Pearson,  4  Taunt.  662,  ....     1950,2086 

Reynolds  v.  Ocean  Ins.  Co.,  1  Mete.  160;  22  Pick.  191,        1313,  1545,  1559, 

1671,  1672,  1815,  1881,  1953,  2002,  2166 

V.  Tappan,  15  Mass.  R.  370,    ,  .  .  .  .398 

U.Pitt,  19  Ves.  134,  .....  771 

Rex  V.  Johnson,  7  East,  65,         .  .  .  ,  .  2097 

v.  Plumer,  Russ.  &  Ry.  264,      .  .  ,  ,  .        2097 

1\  Watson,  1  Camp.  215,     .  .  .  .  .  ,2097 

Rhadamanthus,  (The)  1  Dods.  Adm.  R.  201,  .  .  .         1565 

Rhind  u.  Wilkinson,  2  Taunt.  237,  .  .  .179,266,2021,2103 

Rhinelander  v.  Ins.  Co.  of  Penn.,  4  Cranch,  29,        .  1109,  1621,  1705 

V.  Juhel,  2  Johns.  Cas.  487,  ,  ,  628,  748,  1122 

Rhinehart  v.  Alleghany  Mut.  Ins.  Co.,  1  Penn.  359,  .  .  1939 

Rhodes  v.  Hunter,  2  Hud.  &  Brook.  581,  ....   1953 

Ribbans  V.  Crickett,  1  Bos.  &  Pull.  264,        .  .  .  215,  2061 

Rice  V.  George,  22  Pick.  158,     ......    2053 

r.  Homer,  12  Mass.  230,  ....  1136,1517 

r.  New  Eng.  Mar.  Ins.  Co.,  4  Pick.  439,     .  551,553,570,620,620 

Rich  r.  Jackson,  4  Bro.  Ch.  Rep.  514,  ....  1936 

r.  Parker,  2  Esp.  615 ;  7  T.  R.  705,  .  .  .  764,  813 

Richards  v.  Marine  Ins.  Co.,  3  Johns.  307,  ....  939 

V.  Murdock,  1  L.  &  W.  132  ;  10  B.  &  C.  527 ;  10  Bing.  57,         524 

Richardson  v.  Anderson,  1  Camp.  43,  n.,  65,  n.,  .  .       1873,  2111 

V.  London  Ass.  Co.,  4  Camp.  94,  .  .  .  963 

V.  Maine  F.  &  U.  Ins.  Co.,  6  Mass.  102,     748,  748,  846,  966, 1025, 

1025,  1074,  1114,  1115,  1115,  1117,  1119,  1121 

V.  INIellish,  1  Ryan  &  Moody,  56,  .  .  .  2098 

V.  Nour.<c,  3  P..  &  A.  237,  .....       1364 

V.  Sufl'olk  ins.  Co.,  3  Mete.  573,  .  .  1815,  2070 

Richmond,  The,  5  Chr.  liob.  32.'i,        ....  271,271 

Rickards  r.  Murdock,  10  B.  &  C.  527  ;  1  D.  &  R.  221,    .  .  2111 


TABLE    OF   CASES.  IXVU 

Kickman  v.  Carstairs,  2  N.  &  M.  502 ;  5  Barn.  &  Ad.  651,      .  447,  940 

Ricord  r.  Bettenham,  3  Burr.  1734,  ....      147,147 

Rider  V.  Ocean  Ins.  Co.,  20  Pick.  259,  .  .  .  180,  197,  2021 

Ridout  V.  Johnson,  Buller's  N.  P.  283,        ....  2052 

Riggin  V.  Patapsco  Ins.  Co.,  7  Harris  &  Jolins.  279,    .  .  .       1025 

Riley  V.  Delafield,  7  Johns.  522,     ....         339,480,1965 

V.  Hartford  Ins.  Co.,  2  Conn.  368,  .      327,  333,  1179,  1204,  1208 

V.  Ocean  Ins.  Co.,  4  Rob.  (La.)  R.  225,         .  .  .  1535 

Ring  V.  Franklin  Ins.  Co.,  2  Hall's  R.  1,  .  .  .         265,  2124 

Ringende  Jacob,  The,  1  Chr.  Rob.  89,        .  .  .  .     284,  791 

Risdale  v.  Newnham,  3  Maule  &  Selwyn,  456,  ....  776 
Rising  V.  Burnett,  INIarsh.  Ins.  730,  ....    416,  2019 

Rising  Sun,  The,  2  Chr.  Rob.  104,         .'  .  .  .  .261 

Ritchie  V.  United  Ins.  Co.,  5  Serg.  &  Rawle,  501,    .  .  1523,  1557 

Rix  V.  Ocean  Ins.  Co.,  MS.  Referees,  September,  1831,  Mass.  1196,  1197 
Robbins  v.  New  York  Ins.  Co.,  1  Hall,  325,  .  338,  482,  1802,  1802,  2125 
Robert  v.  Traders'  Ins.  Co.,  17  Wend.  631,  •  .        297,  881,  1712 

Robeiis  v.  Chenango  County  Mat.  Ins.  Co.,  3  Hill,  501,  .  .  71,  71 

V.  Fonnereau,  Park,  285  ;  Beawes,  Lex  Merc.  266,  .  616 

V.  Fortinie,  1  Harg.  Law  Tracts,  446,  .  .  .     2105 

V.  Ogilby,  9  Price,  269,       ....  1906,  1995 

Robertson  v.  Carruthers,  2  Starkie,  271,  .  ,  .  .  1534 
V.  Clarke,  1  Ryan  &  Moody,  75 ;  1  Bing.  445  ;  8  Moore,  622,    144, 

979,  1534,  1584 

r.  Columbian  Ins.  Co.,  8  Johns.  491,       .  .    1026,  1503,  1841 

V.  Ewer,  1  T.  R.  127,  ,  .  463,  1068,  1074,  1347 

V.  French,  4  East,  130 ;  4  Esp.  246,        120,  125,  939,  2052,  2124, 

2126 

u.  Hamilton,  14  East,  522,     ....         311,1859 

V.  Majoribanks,  2  Starkie,  573,  ....  1647 

V.  Money,  1  Ryan  &  Moody,  75,       .  .  .         933,  2119 

V.  Stewart,  Bell's  Commentaries,  520,     .  .  .  1662 

V.  United  Ins.  Co.,  2  Johns.  Cases,  250,         .  427,  1583,  1822 

V.  Western  F.  &  M.  Ins.  Co.,  19  La.  R.  227,      .  .  134,  1580 

Robinson  v.  Cheesewrisrht,  1  M.  &  S.  220,         .  .  .  .245 

I'.  Clifford,  2'"Wash.  C.  C.  R.  1,  .  .  .  2096,  2110 

I'.  Commonwealth  Ins.  Co.,  3  Sumner,  221,  1547,  1569,  1625, 

1765,  1767,  2076 

V.  Georges  Ins,  Co.,  17  Maine,  131,   .  .   58,  1497,  1941,  1990 

r.  Gleadow,  2  Scott,  250;  2  Bing.  N.  C.  156,     .  1849,  1852 

V.  Jones,  8  Mass.  536,  .  .  .   818,  821,  1051,  2109 

V.  Lyall,  7  Price,  592,       .....     289,  301 

V.  Manufacturers'  Ins.  Co.,  1  Mete.  143,        .  .  335,  475 

t'.  Marine  Ins.  Co.  of  New  York,  2  Johns.  89,     .  .  1025 

V.  Morris,  5  Taunt.  720,  ....  245,2123 

V.  New  York  Ins.  Co.,  2  Caines,  357,       .  .  .  311 

t'.  Tobin,  1  Starkie,  336,         .  .  .  109,  125,  2014 

V.  Touray,  3  Camp.  158 ;  1  M.  &  S.  217,         73,  246,  248,  437,  440, 

1194 
Roche  r.  Thompson,  Millar  on  Insurance,  20,  .  .  .  1148 

Roebuck  v.  Hamerton,  Cowper,  737,     .  .  .  .  .211 

Rogers  v.  Davis,  Beawes,  Lex  Merc.  242;  Park,  Ins.  423,      361,  1251,  1838, 

2146 

r.  Hosack's  Ex'rs,  18  Wend.  319,  ....     1707 

v.  Howard  Ins.  Co.,  6  Paige's  Ch.  R.  583,    .  76,399,403,1971 

v.  M'Arthy,  Park,  45,  n.,  .  .  .  .  .13 

V.  Maylor,  1  Esp.  489  ;  Park,  Ins.,  8th  ed.  267,         1815,  1817,  2040, 

2151 


Ixviii  TABLE   OF   CASES. 

Rogers  v.  Mechanics'  Ins.  Co.,  1  Story,  603;  2  id.  173,       135,  137,  140,  460, 

460 

V.  Niagara  Ins.  Co.,  2  Hall,  86,  .  .  .  .         851,  2035 

V.  Traders'  Ins.  Co.,  6  Paige's  Ch.  R.  583,         76,  387,  399,  402,  403, 

1971 
Roget  V.  Thurston,  2  Johns.  Cases,  248,       .  .  .    1025,  1162,  1674 

Roiil  i\  Parr,  1  Esp.  445,  .....        1101,1774 

RolfFe  V.  Harris,  2  Price,  26,  ....  .  771 

Rolla,  The,  6  Chr.  Rob.  364,      ....       827,  828,  829,  830 
Rolleston  v.  Hibbert,  4  East,  114  ;  3  T.  R.  406,        .  .  265,  2124 

I'.  Smith,  4  T.  R.  161,  .  .  .  .  .264 

Romeo,  The,  6  Chr.  Rob.  351,         .....  818 

Rosalia  and  Elizabeth,  The,  4  Rob.,  note  to  Table  of  Cases,    .  222,  281 

Rosalie  and  Betty,  The,  2  Chr.  Rob.  343,   ....     222,  281 
Roscow  r.  Corson,  8  Taunt.  684,  .....     1068 

Rose,  The,  2  Chr.  Rob.  206,  .....  278 

Rose  f.  Himely,  4  Cranch,  239,  .  .  .  .        2104,2104 

Rosetto  V.  Gurney,  7  Eng.  Law  &  Eq.  R.  (Press  of  Little,  Brown  &  Co.)  461; 
S.  C,  20  Eng.  Law  Jur.  (n.  s.)  Com.  PI.  257 ;  S.  C,  15  id.  1157, 

1046,  1462,  1462,  1767,  1777 
Ross  V.  Bradshaw,  1  W.  Bl.  312,  ,  .         647,  669,  669,  771  a,  894 

r.  Hunter,  4  T.  R.  33,  ...      1066,  1082,  2133,  2156 

V.  Sloop  Active,  2  Wash.  C.  R.  226,  .  .  .  .1320 

V.  Thwaite,  1  Park  on  Insurance,  23,  .  .  .  .  460 

Rotch  V.  Edic,  6  T.  R.  413,        .....         240,  1111 
Rotheroe  v.  Elton,  Peake's  Cases,  84,  ....  2052 

Rothwelli7.  Cooke,  1  B.  &P.  172,  .....     1834 

Rousset  I'.  Ins.  Co.  of  North  America,  1  Binn.  l29,  .  77,  82,  903 

Routh  V.  Thompson,  11  East,  428;  13  East,  274,        320,  323,  388,  428,  1824, 

1825,  2018 
Routledge  v.  Burrell,  1  H.  Bl.  254,        .  .  .70,  756,  1805,  2130 

V.  Grant,  3  Carr.  &  Payne,  267;  4  Bing.  653,   .  .  17 

Roux  r.  Salvador,  1  Bing.  N.  C.  526 ;  3  id.  266,  1497,  1569,  1606,  1611, 

1762,  1767,  1771,  1776 
Rowcroft  V.  Dunsmore,  3  Taunt.  228,  ....  1099 

Rowley  y.  Bigelow,  12  Pick.  307,  .  .  .  .  .179 

Ruan  V.  G^rdner^  1  Wash.  C.  C.  R.  145,     .  430,  1932,  2052,  2095,  2136 

.  .       289 

1007 

247 

1172,  1568,  1847b 

.     2025 

970 

2061,  2061 


Rubicon,  The,  1  Hagg.  Ad.  R.  13, 
Rucker  v.  Allnut,  15  East,  278,        . 

V.  Ansley,  5  M.  &  S.  25, 

V.  Conyngham,  2  Peters's  Ad.  R.  295, 

V.  Green,  15  East,  288, 

V.  London  Assurance  Co.,  2  B.  &  P.  432,  n., 

V.  Palsgrave,  1  Taunt.  419 ;  1  Camp.  557, 

Rugglcs  r.  General  Int.  Ins.  Co.,  4  Mason,  74,    549,  564,  578,  610,  622,  2159 
Handle  v.  Moore,  3  Johns.  Cases,  36,  .  .  .  .  1897 

Russel  v.  Union  Ins.  Co.,  1  Wash.  C.  C.  R.  409;  4  Dall.  421,     290,  309,  311, 

421 
Russell  V.  Banglcy,  4  Barn.  &  Aid.  395,  .  .  140,  140,  1883 

f.  Bohcrae,  Str.  1127,  ....  2126,2127 

V.  Dc  Grand,  ir>  Mass.  35,  .  .  .  210,  519,  2119 

V.  Dunskey,  G  J.  B.  Moore,  233,      .  .  .  .  2151 

V.  New  England  Mar.  Ins.  Co.,  4  Mass.  R.  82,  .  .  380,  382,  408 

S. 

Sadler  r.  Dixon,  5  Mecs.  &  AVcls.  415;  8  id.  895,  87,  691,  706,  717,  727, 

733,  1049 


TABLE   OF   CASES. 


Ixix 


Sadlers'  Co.  v.  Badcock,  2  Atk.  554, 
Sage  V.  MIddlctown  Ins.  Co.,  1  Conn.  R.  239, 
5  Day,  409, 


78,  87,  402,  1973,  1986,  2018 
962,  1087,  1328,  1424,  1429 
.     2101 


Saidler  v.  Church,  cited  2  Calnes,  244,  288, 
St.  Catharine,  Hagg.  Adm.  R.  250, 
St.  Ivan,  The,  Edw.  Adm.  R.  376    . 
St.  Jose  Indiano,  The.     See  Scm  Jose. 
St.  Juan  Baptista,  The,  5  Chr.  Rob.  33, 
St.  Lawrence,  The,  1  Gallison's  R.  467, 
St.  Louis  Ins.  Co.  v.  Glasgow,  8  Missouri  R.  713, 
V.  Kyle,  11  Missouri  R.  278, 


.  1051 

171,  171,  216 

1058,  1096 

886 

.   226 

540 

139 

.   260,  791 

784,  799 

2096,  2109 

Saltash  (Corporation  of)  v.  Jackman,  13  Eng  L.  J.  (n.  s.)  Q.  B.  105,      1989 


St.  Philip,  The,  8  T.  R.  556, 
Salem  India  Rubber  Co.  r.  Adams,  23  Pick.  256, 
Salisbury  v.  Townson,  Millar  on  Insurance,  418, 
Sally,  The,  3  Chr.  Rob.  300,  n., 
Saloucci  I'.  Johnson,  Park,  556  ;  4  Doug.  224,  . 
V.  Woodmass,  Park,  3G4;  Marsh.  401, 


1699 

1568 

250 


Saltus  V.  Commercial  Ins.  Co.,  10  Johns.  487, 

V.  Ocean  Ins.  Co.,  12  Johns.  107,     . 

V.  Ocean  Ins.  Co.,  14  Johns.  138, 

V.  United  Ins.  Co.,  15  Johns.  523,     . 

Salvador  v.  Hopkins,  3  Burr.  1,  707,     . 

Salvin  v.  James,  2  Smith,  646  ;  6  East,  571, 

Sampson,  The,  1  Chr.  Rob.  346, 

Samuel  v.  Royal  Exch.  Ass.  Co.,  8  B.  &  C.  119,    . 

Sanches  v.  Davenport,  6  Mass.  R.  258, 

Sanders  v.  Pope,  12  Ves.  281, 

Sanderson  v.  Busher,  4  Camp.  54,  n.,    . 

V.  M'Cullora,  4  J.  B.  Moore,  5,  . 

V.  Marine  Ins.  Co.,  2  Cranch  C.  C.  R.  218, 

V.  Symonds,  1  Brod.  &  Bing.  426, 

Sands  v. ,  10  Mod.  79,        . 

San  Jose  Indiano,  2  Gall.  268, 

Sanson  v.  Ball,  4  Dall.  459,       .... 

Santa  Maria,  The,  7  Wheat.  490,    . 

Santissima  Trinidad,  The,  7  AVheat.  283, 

Sarah,  The  Brig,  2  Sumner's  Rep.  206, 

Sarah  Ann,  The,  13  Pet.  S.  C.  R.  387  ;  2  Sumn.  R.  206, 

Sarah  Christina,  The,  1  Chr.  Rob.  237, 

Sarah  Maria,  The,  Edw.  Ad.  R.  361, 

Saratoga,  The,  2  Gall.  164,       . 

Sargent  v.  Morris,  3  B.  &  Aid.  277, 

Sarquv  t'.  Hobson,   2  B.   &   C.  7  ;  3  D.  &  R.  192  ;  4 

437,  .... 

Saunders  v.  Drew,  3  B.  &  Ad.  445,  . 
V.  Frost,  5  Pick.  259, 


1328 

1438,  1602,  1639 

1386, 1451,  1768 

1093, 1115 

.    140,  144,  342 

74,  953 

819 

.  968,  1002 

.     1890 

771 

.     2004 

.     113, 114 

.     1431 

114 

199 

165,  803,  814,  815 

336,  342,  482,  484 

194 

1G6,  194,  282,  909 

1708 

1524,  1583,  1708 

.    271,  284,  791 

249 

1115,1719 

1959 

Bing.  131  ;  1  Y.  &  J. 

.  1139 

.    338,  482 

.   1962 


Saurez  v.  Sun  Mut.  Ins.  Co.,  2  Sandford's  Rep.  Sup.  Ct.of  City  of  N.  Y.  482, 

1535,  1541 
Savage  u.  Pleasant,  5  Binn.  403,         .  .     1115,1129,1154,1669,1675 

Savill  u.  Barchard,  4  Esp.  53,.  .  .  .  .  .133 

Saville  v.  Campion,  2  B.  &  Aid.  503,  ....         1083 

Sawtell  I'.  Loudon,  5  Taunt.  359  ;  1  Marsh.  R.  99,         .  .  559,  633 

Sawyer  v.  Maine  F.  &  M.  Ins.  Co.,  12  Mass.  291,      .  1122,  1591,  2104 

Scaifr.  Tobin,  3  B.  &  Aid.  523,  ....  .1999 

Scaife  v.  Johnson,  3  B.  &  C.  422,      ....  2060,  2160 

Sehietrelin  v.  N.  Y.  Ins.  Co.,  9  Johns.  21,  1057,  1137,  1438,  1662,  1708 

Schmidt  V.  United  Ins.  Co.,  1  Johns.  249,  .  .  .  1115 


Ixx  TABLE   OF   CASES. 

Schnakoneg  v.  Andrews,  5  Taunt.  716,  ....  1109 
Schondler  w.  Wace,  1  Camp.  R.  487,        ....  1973 

Schroder  i'.  Thompson,  1  Moore,  163  ;  7  Taunt.  462,  .  .        1002 

V.  Vaux,  15  East.  52,      .  .  .  .  .  .    244 

Schwartz  v.  Ins.  Co.  of  N.  America,  3  Wash.  C.  C.  R.  276,  .  .  810 

Scioto,  The,  Davies's  R.  352,       ......  1420 

Scott  v.  Bourdillion,  5  B.  &,  P.  213,  .  .  .  144,  1764 

iJ.  Eagle  Fire  Ins.  Co.,  7  Paige's  Ch.  R.  198,         .  .  .     1939 

V.  Irving,  1  B.  &  Ad.  605,        ....    140,  1883,  1883 

r.  Libbey,  2  Johns.  336,    ......      1115 

V.  PhcenLx  Fire  Ass.  Co.,  Stuart's  R.  (Canada)  354,  .  .  1808 

V.  Quebec  Fire  Ass.  Co.,  Stuart's  R.  (Canada)  147,        .  .      872 

V.  Rouse,  3  Irish  Eq.  R.  170,   .  .  .  .  .  1939 

V.  Thompson,  4  B.  &  P.  181,        ....        1025,  1081 

Scribai;.  Ins.  Co.  ofN.  Am.,  2  Wash.  C.  C.  R.  107,  .       939,947,1844 

Scudder  i'.  Bradford,  14  Pick.  13,  .  .  .  .       1318,  1318 

Scull  V.  Briddle,  2  Wash.  C.  C.  R.  150,      ....  1578 

Sea  Ins.  Co.  v.  Fowler,  21  Wend.  600,  .  .  .  .      450 

of  Scotland  v.  Gavin,  2  Dow.  &  Clarke,  129,.  .  958 

Seabury  v.  City  Mutual  M.  &  F.  Ins.  Co.,  MS.  .  .  .1796 

Seaman  I'.  Fonnereau,  2  Str.  1183, .  ....  876 

Seamans  v.  Loriug,  1  Mason,  128,       204,  309,  363,  383,  384,  919,  935,  1253, 

1838 
Searle  v.  Scovlll,  4  Johns,  (^h.  R.  218,  .    1138,  1388,  1441,  1462,  1602 

Sechs  Geschwistern,  The,  4  Chr.  Rob.  100,  .  .  .  256 

Sellar  v.  M'Vicar,  4  B.  &  P.  23,  .  .  .  332,  930,  945,  991 

Seller  v.  Work,  Marsh.  Ins.  299,    .  .  .         1886,  1892, 1892,  1898 

Seringapatam,  The,  2  Wm.  R.  38,  ....  1137  a,  1420 
Servante  t;.  James,  10  B.  &Cr. 410,         ....  1960 

Senat  v.  Potter,  7  T.  R.  158,  .  .  .  .  .         2095 

Seton  r.  Del.  Ins.  Co.,  2  Wash.  C.  C.  R.  175,      .  .       1117,1154,1611 

V.  Low,  1  Johns.  Cas.  1,  282,  446,  527,  628,  748,  846,  1122,  1981 

Sewall  r.  U.  S.  Ins.  Co.,  11  Pick.  90,         1424,  1526,  1527,  1543,  1548,  1551, 

1607 

V.  Roy.  Exch.  Ass.  Co.,  4  Taunt.  855,  .  .  .231 

Sexton  V.  Montgomery  County  Ins.  Co.,  9  Barb.  191,     872  a,  881,  886,  1806, 

1876,  1949,  2090,  2144 
Seyerstad,  The,  1  Dod.  Adm.  R.  241,  .  .  .  .         249 

Shapley  v.  Tappan,  9  Mass.  20,  .  .  .  .  .      964,  2118 

Sharp  u.  Gladstone,  7  East,  24,  .  .  .  1332,1347,1740 

V.  United  Ins.  Co.,  14  Johns.  201,  .  .  .  2124 

Shaw  V.  Robberds,  or  Roberts,  6  Ad.  &  El.  75  ;  Nev.  &  P.  279,       871,  874, 

1096 
Shawe  V.  Felton,  2  East,  109,  ....  1183,  1203,  1203 
Shee  I'.  Clarkson,  12  East,  507,  .  .  1865,1924,1925,1926 
Shelburne  v.  Inchiquin,  1  Bro.  Ch.  R.  350,  .  .  .  1936 
Shei)licr(l  r.  Ciiewter,  1  Camp.  274,  .  .  .  .  .1815 
Shcphcr(lcs.s,  The,  5  Chr.  Rob.  262,  .  .  .  831,  838,  840 
Slieppard  v.  Wright,  Show.  Pari.  Cas.  18,  .  .  .  .  1934 
SlieriU'c.  Potts,  .o'Esp.  96,  .....  999,2151 
SUennan  v.  Fair,  2  Sj)oer,  S.  Car.  R.  647,  .  .  .  .91 
Slierwood  v.  General  Mut.  Ins.  Co.,  1  Blatchford's  R.  251,  1416,  1419,  1436 
ShicHelin  u.  New  York  Ins.  Co.,  9  Johns  21,  .  .  .  .  1137 
Shiilc.  La.  [ns.  Co.,  6  Martin,  N.  «.  629,  .  .  1297,  1414 
Sliiflner  i>.  (Jordon,  12  East,  296,  .  .  .  .  .244 
ShiptoM  D.  Thornton,  9  Ad.  &  El.  314,  ....  1462 
Shirley  v.  Wilkinson,  1  Doug.  306;  3  id.  41,  .  .  .  .546 
V.  Mut.  Ass.  Co.,  2  Rob.  (Va.)  Rep.  707,  .            .             .  523 


TABLE   OF   CASES.  Ixxi 

ShirtlefFv.  Whitfield,  2  Brev.  R.  71,  .  .  .  .        1889,  1891 

Shoemaker  v.  Smith,  2  Binn.  239,  ....  1871 

Shoolbrcd  v.  Nutt,  Park  on  Ins.  346,  .  .  .  .  ,601 

Shore  v.  Bentall,  7  Barn.  &  Crcs.  798,  n.,  .  .  .     733,  1049 

Shultz  V.  Ohio  Ins.  Co.,  1  B.  Monroe,  336,     .  .  .  .1777 

Shumwav  v.  Stillman,  6  Wend.  447,         ,  .  .  .  2104 

Sibbald  v.  Hill,  2  Dow,  263,  .....  530,  579 

Sideways  y.  Todd,  2  Starkie's  N.  P.  Cas.  400,      .  .  .  1908 

Sifi"ken  v.  Allnut,  1  Maule  &  Selwyn,  39,       .  .      246,  342,  1819,  1846 

Siffkin  v.  Glover,  4  Taunton,  717,  ....  246 

. V.  Lee,  5  Bos.  &  Pul.  484,       .....         808 

Silvau.  Linder,  2  Marshall's  R.  437,         .  .  .        1957,1972,1998 

V.  Low,  1  Johns.  Cas.  184,  ....  710,  1001 

Sills  t;.  Brown,  1  C.  &  P.  60,        .....  2112 

Simeon  I'.  Bazett,  2  Maule  &  Selwyn,  94,      .  .  .  .911,914 

Simmes  v.  Marine  Ins.  Co.  2  Cranch  C.  C.  Rep.  618,      .  .  -527 

Simond  v.  Boydcll,  1  Douglass,  255,  .  .  .  782,  1840,  1943 

Simonds  u.  Hodgson,  6  Bingham,  114,     .....     467 

V.  Union  Ins.  Co.,  1  Wash.  C.  C.  R.  382,  443,         .  1645,  1741 

V.  White,  2  B.  &  C.  805;'8  D.  &R.  375,         .         1375,1414,1416 

Sims  t).  Gurney,  4  Binn.  513,  .  .  .     1279,1313,1318,1934 

I'.  Willing,  8  Serg.  &  Rawie,  103,  .  .  .         1360,1411,2148 

Simson  v.  Charleston  Fire  &  Mar.  Ins.  Co,,  Dudley's  R.  239,  .  .     1129 

Siordet  v.  Hall,  4  Bing.  607,  .....  1051 

Sisters,  The,  5  Chr.  Rob.  155,  438,  ....  265,  2124 
Skidmore  v.  Desdoity,  2  Johns.  Cas.  77,  .  282,  446,  748,  846,  1122,  1126 
Skinner  v.  Dayton,  2  Johns.  Ch.  R.  526,  .  .  .  .771 

V.  Stocks,  4  B.  &  Aid.  437,  ....  1959 

V.  Western  F.  &  M.  Ins.  Co.,  19  La.  R.  273,     .  .       1767,  1771 

Sleght  V.  Hartshorne,  and  same  Pl'ff.  v.  Rhinelander,  1  Johns.  192 ;  2  id.  531, 

67,  120,  144,  786,  805,  805 
Slingsby's  Case,  5  Coke's  R.  19  ;  2  Leon.  47,    .  .  .  .     1960 

Slocum  V.  United  Ins.  Co.,  1  Johns.  Cases,  151,      .  .  .  1662 

Small  V.  Gibson,  3  Eng.  Law  &  Eq.  R.  (Press  of  Little,  Brown  &  Co.)  290 ; 

S.  C,  14  Eng.  Jurist,  368  ;  20  Eng.  Law  J.  R.  (n.  s.)  152  ;  15  Eng. 

Jur.  325  ;  1  Eng.  Law  &  Eq.  R.  1853,  Com.  L.  363,    720,  727,  728, 

729,  2032 
Smetz  V.  Kennedy,  Riley,  218,  ....  135,  698,  727 

Smidt  y.  United  Ins.  Co.,  1  Johns.  249,         .  .  .  1115,2122 

Smith  V.  Bell,  2  Gaines's  Cases,  153,      ....       1539,  1543 

V.  Bowditch  Mut.  Fire  Ins.  Co.,  6  Cushing's  R.  448,     641,  874  a,  874  a 

V.  Brown,  3  New  Hamp.  R.  580,       ...  %  758 

V.  Buchanan,  3  AVash.  C.  C.  R.  127,        ....     1669 

r.  Cologan,  2  T.  Jl.  188,  n.,    .  .  .  .  1870,  1890 

I'.  Columbia  Ins.  Co.,  17  Penn.  (5  Harris's)  R.  253,       592,  641,  1481, 

1716,  1749 

Delaware  Ins.  Co.,  3  Serg.  &  Rawle,  82,    1154,  1154,  1154,  1154,  1154 

3  Wash.  C.  C.  R.  127,  .  .  .     1156 

r.  Eaton,  20  Pick.  R.  50,        . 

V.  Fuge,  3  Camp.  456,     .... 

r.  Lascelles,  2  T.  R.  187, 

r.  Manufacturers'  Ins.  Co.,  7  Mete.  448,  . 

V.  Mississippi  Fire  &  Mar.  Ins.  Co.,  11  La.  R.  142, 

V.  Kewburyport  Mar.  Ins.  Co.,  4  Mass.  668, 

V.  Odlin,  4  Yeates,  468, 

i\  Plummer,  1  B.  &  Aid.  575,       . 

r.  Readshaw,  Park,  510, 

V.  Robertson,  2  Dow,  474, 


2124 

.  286, 

1862, 

1888 
1497 

.  460,460 

1669 

. 

9 

. 

, 

289 

780 

1662, 

1691, 

1704 

Ixxii  TABLE   OF   CASES. 

Smith  V.  Saratoga  Mut.  Ins.  Co.,  1  Hill,  497  ;  3  id.  508,        97,  523,  879,  879, 

904 

V.  Scott,  4  Taunt.  126,  ....  1099,  2004 

V.  Smith,  1  Tyrw.  52 ;  2  Crompt.  &  Mces.  231,  .  .  .         95 

V.  Steinback,  2  Gaines's  Cases  in  Error,  158,        992,  1494,  1507,  2085 

V.  Surridge,  4  Esp.  25,  200,  690,  710,  720,  720,  1002,  1002,  2104 

V.  Taylor,  2  Chit.  R.  142,       .  .  .  .  .  1960 

i;.  Touro,  14Mass.  112,    ......     1735 

V.  Universal  Ins.  Co.,  6  "Wheat.  176,  1113,  1114,  1115,  1115,  1956 

V.  Williams,  Gaines's  Cases  in  Error,  110,     .  .       299,  307,  2109 

r.  Wilson,  3  B.  &  Ad.  728,  ....  67,144 

V.  Wright,  1  Gaines,  43,         ....  .  138,  1282 

Snell  V.  Delaware  Ins.  Co.,  4  Dall.  430;  1  Wash.  C.  G.  R.  509,       1219,  1229, 

2127 

V.  Faussatt,  1  Wash.  C.  G.  R.  271,  .  .  .  .     2104 

V.  Marryatt,  Abbott  on  Shipping,  644,  .  .  .  2005 

Snook  V.  Davidson,  2  Gamp.  218,  .....     1915 

Snowden  v.  Phcenix  Ins.  Co.,  3  Binn.  457,  .  .  .  .     818,  820 

Snyder  v.  Farmers'  Ins.  &  Loan  Co.,  13  Wend.  92 ;  16  id.  481,    72,  539,  638, 

871,  873 
Scares  v.  Thornton,  7  Taunt.  627 ;  Ij.  B.  Moore,  373,  .       1056,  1083 

Sobrey  v.  Terrier  de  Laistre,  2  liar.  &  Johns.  193,  .  .  2049 

Society  for  the  Propagation  of  the  Gospel  v.  Wheeler,  2  Gal.  105,     151,  167, 

814 
Solly  V.  Whitmore,  5  Barn.  &  Aid.  45,  .  .  .  .  .     1007 

Somerville  v.  Somerville,  5  Ves.  787,  .  .  .  .  164 

Somes  V.  Sugrue,  4  Car.  &  Payne,  276,  .  .  1534,  1579,  1579 

Sorbe  v.  Merchants'  Ins.  Co.,  6  La.  R.  185,  .  .  .  447 

South  Sea  Go.  v.  Bumstead,  1  Equity  Gases  Abr.  76,   .  .  .     2071 

Southcombe  v.  Merriman,  Car.  &  Marshman,  286,  .  .  .  900 

Spafford  v.  Dodge,  14  Mass.  66,  .     1319,  1332,  1374,  1379,  1387,  1392 

Sparenbursr  v.  Bannatyne,  1  B.  &  P.  163,  .  .  .  170,  171 

Sparkcs  r.  Marshall,  2"Bing.  N.  G.  761,      .     82,  180,  1973,  2011,  2018,  2123 
Sparrow  v.  Garruthers,  2  Strange,  1236,      .  .  .  .  970 

Speculation,  The,  Edw.  Adm.  R.  344,   .  .  .  .  .247 

Spencer  r.  Franco,  2  Burr.  1211,    .....  1531 

Sperry  v.  Delaware  Ins.  Co.,  2  Wash.  C.  G.  R.  243,      .  .  625,  831 

Spes  and  Irene,  The,  5  Chr.  Rob.  76,  .  .  .  .  337 

Speyer  ?;.  New  York  Ins.  Co.,  3  Johns.  88,        .  .  144,967,1331 

Spicer  v.  Cooper,  1  Ad.  &  El.  N.  S.  424,     ....  144 

Spitta  V.  Woodman,  2  Taunt.  416  ;  16  East,  188,  n.,     .  .  861,  939 

Splidt  ?;.  Bowles,  10  East,  279,         .....  1740 

Spring  l:  South  Carolina  Ins.  Co.,  8  Wheat.  268,    101, 1909, 1919, 1920, 1923, 

,  1978 

Staadt  Embden,  The,  1  Chr.  Rob.  26,  .  .  .  .  232,  284,  791 

Stacey  v.  Franklin  Fire  Ins.  Co.,  2  Watts  &  Serg.  506,       122,  864,  881,  881 
Stackpole  ?'.  Arnold,  11  Mass.  27,    .....  518 

Stackpool  ?'.  Simond,  Marsh.  Ins.  772;  Park,  648,         .        353,  528,  554,  652 
Stafl'ord  r.  Clark,  2  P.ing.  437,  ....  2037,  2061 

Stainbank  r.  Fenning,  6  Eng.  Law  &  Eq.  R.  (Press  of  Little,  Brown  &  Co.) 
412;  20  Eng.  Law  Jour.  (n.  s.)  226,     .  .  .289 

Stamma  v.  Brown,  2  Str.  1173;  8  East,  136,  .       1062,  1072,  1074,  2022 

Stanton  r.  Eagar,  10  Pick.  467,  .  .  .  .  '   .       197 

Stanwood  v.  Rich,  Sun.  Jud.  Ct.  Mass.,  Suffolk,  1817,         .  701,  715,  726 

Starbuck  r.  New  England  liis.  Co.,  19  Pick.  198,  ,  .  731,  735 

Stark  County  Mut.  Jus.  Co.  r.  Ilurd,  10  Ohio  R.  149,        .  .  881 

Stebbins  v.  Globe  In.s.  Co.,  2  Hairs  R.  632,  .  72,  145,  642,  1033,  1943 

Steel  1-.  Lacy,  3  Taunt.  285,      .  .      527,550,626,642,745,809,1817 


TABLE   OF   CASES. 


Ixxiii 


Steele  V.  Franklin  Ins.  Co.,  17  Pcnn.  (5  Harris's)  11.  290,        .  .     1850 

Steinbach  v.  Church,  3  Johns.  Cases,  269,  ....     388,  393 
V.  Columbian  Ins.  Co.,  2  Gaines's  R.  132,        992,  1674,  1820,  2103 


1082 

388,  393,  919,  1827,  2054 

.     828,  844 

187,  211,  286,  394,  422, 

1036,  1956 

Stevens  v.  Beverly  Ins.  Co.,  Mass.  Sup.  Jud.  Ct.,  Essex,  Oct.  1820,      66,  963 


V.  On;dcn,  3  Caines's  R.  1, 

V.  Ilhinelander,  3  Johns.  Cases,  269, 

Stert,  The,  4  Chr.  Rob.  65, 

Stetson  V.  Mass.  F.  &  M.  Ins.  Co.,  4  Mass.  330, 


V.  Columbian  Ins.  Co.,  3  Caines's  R.  43, 
V.  Stevens,  1  Ashmead,  190, 


Stevenson  v.  Snow,  3  Burr.  1237;  1  W.  Bl.  318, 
Stewart  v.  Aberdein,  4  Mees.  &  Wels.  288, 

V.  Bell,  5  Barn.  &  Aid.  238,      . 

V.  Dunlop,  4  Bro.  Farl.  Cas.  483 ;  Marsh.  Ins. 

V.  Morrison,  Millar  on  Insurance,  59, 

v.  Steele,  5  Scott,  N.  R.  727,    . 

V.  Tennessee  Ins.  Co.,  1  Humphrey,  242,  . 

V.  Wilson,  12  Mees.  &  Wels.  11, 

Stiles  V.  Stokes,  7  East,  506, 

Stirling  v.  Vaughan,  2  Camp.  225 ;  11  East,  619, 
Stitt  V.  Warden,  Park,  Ins.  438 ;  2  Esp.  610, 
Stocker  v.  Harris,  3  Mass.  409,  .  .  .    963, 

V.  Merrimack  Ins.  Co.,  6  Mass.  220, 

Stockdale  v.  Dunlop,  6  Mees.  &  Wels.  224, 

Stocking  V.  Fairchild,  5  Pick.  181,  . 

Stoever  v.  Whitman,  6  Binn.  417, 

Stockton  V.  Hall,  Hardin,  160, 

Stokes  V.  Came,  2  Camp.  339,  . 

Stone  V.  Ball,  3  Levinz,  348, 

V.  National  Ins.  Co.,  19  Pick.  34, 

V.  Wood,  7  Cowen,  453, 


Storer  v.  Gray,  2  Mass.  565, 
Story  V.  Strettell,  1  Dall.  10, 
Stracy  v.  Deey,  7  T.  R.  361,  n., 
Strong  V.  Harvey,  3  Bing.  304,. 

V.  High,  2  Robinson's  (La.)  R.  103, 

V.  Manufacturers'  Ins.  Co.,  10  Pick.  40, 

V.  Natally,  4  B.  &  P.  16, 

V.  New  York  Firemen  Ins.  Co.,  11  Johns.  323, 

V.  Rule,  3  Bing.  315,      . 

Stuart  V.  Columbiali  Ins.  Co.  of  Alexandria,  2  Cranch,  R.  Dist.  Ct.  N.  S.  442, 

950 
Suart  V.  Powell,  1  Barn.  &  Adol.  266,         ....  210 

Success,  The,  1  Dods.  Adm.  R.  131,      .  .  .  .  .804 

Suckley  v.  Delafield,  2  Gaines,  222,  ....  669,  1075 

Sullivan  v.  Mass.  Mut.  Fire  Ins.  Co.,  2  Mass.  318,         .  .         950,  1956 

Sunderland  Mar.  Ins.  Co.  v.  Kearney,  6  Eng.  Law  &  Eq.  R.  (Press  of  Little, 
Brown  &  Co.,)  312  ;  S.  C.  20  Eng.  L.  J.  Rep.   (n.  s.)   Q.  B. 


1238,  1744 

95 

1834,  1844 

.    1881,  1893,  2169 

.       593 

2ded.467,    562,2159 

527,  551,  620 

.     1743 

.   982,  1048 

.   70,  864,  2026 

2014 

293,  321,  1859, 1965 

.   999,  1001 

1002,  1004,  1017,  1203 

629,  742,  744 

.       183 

68 

67 

95 

.     2124 

27,  127 

917,  1065 

11 

.     1581 

1590 

.     1916 

1424,  1983,  2014,  2043 

.     1892 

286,  640,  880,  1481 

.       973 

1385,  1414 

2014,  2026 


417, 

Surtees  v.  Hubbard,  4  Esp.  R.  204,    . 
Sutherland  v.  Pratt,  11  M.  &  W.  296  ;  12  id.  16, 
Susa,  The,  2  Chr.  Rob.  251, 
Susan,  The,  6  Chr.  Rob.  461,  n., 
Sutton  V.  Buck,  2  Taunt.  302, 
Suydam  v.  Mar.  Ins.  Co.,  1  Johns.  181 ;  2  id.  138, 

Swan  V.  Nesmlth,  7  Pick.  220,      . 

VOL.    I.  g 


226,  386,  409, 2113 

1974 

291,577,  2029,  2038 

.  814,  815 

.     825 

2124 

1002,1002,  1154,  1480, 

1678, 1681,  1684;  1723 

1853 


Ixxiv  TABLE   OF   CASES. 

Sweet  u.  Pym,  1  East,  4,         .  .  ,  .  .  .1917 

Swete  V.  Fairlle,  6  C.  &  P.  1,        .  .     -        .  .  .        648,  657 

Swift  V.  Vermont  Mut.  F.  Ins.  Co.,  18  Vermont,  303,       '     .  .347 

Syers  v.  Bridge,  Doug.  529;  1  Park,  133,  .  .         129,  1002,  1030 

Symonds  t'.  Union  Ins.  Co.,  4  Dal.  417,         ....         1115 


Tabbs  V.  Bendelack,  4  Esp.  R.  108,  .  .  .  .  162 

Taggard  v.  Loring,  16  Mass.  336,  .  .  .  .  .1083 

Tait  V.  Levi,  14  East,  481,  ......  707 

Talbot,  Ex  parte,  13  Eng.Law  &  Eq.  E.  (Press  of  Little,  Brown  &  Co.,)  205, 

1795a 
Talcot  V.  Commercial  Ins.  Co.,  2  Johns.  124,  467,  .         725,  2152,  2152 

V.  Marine  Ins.  Co.,  2  Johns.  130,  .  .      598,  994,  1801,  1802 

Talcott  V.  Del.  Ins.  Co.,  2  Wash.  C.  C.  R.  449,      .  .  .  2050 

Tanner  v.  Bennett,  Ryan  &  Moody,  182,        .  1057,1059,1578,2144 

Tarlton  v.  Staniforth,  5  T.  R.  695,  .  .  .  .70,  74,  74 

Tartar,  The,  1  Hagg.  Adm.  R.  1,        .  .  .  .  .1568 

Tasker  v.  Cunningham,  1  Bligh,  87,  .  .  .  .  .  937 

V.  Scott,  6  Taunton,  234,         .  .  .  .  .     7,  202 

Tate  V.  Meek,  8  Taunt.  280  ;  2  J.  B.  Moore,  278,  .  .  1083 

Tatemt'.  Perient,  Yelv.  195,  .  .....        2028 

Tatham  i;.  Hodgson,  6  T.  R.  656,  .  .  .  .      1048,1092,1129 

Taunton  Copper  Co.  r.  Merchants'  Ins.  Co.,  22  Pick.  108,  137,  137,  139, 

460,400,460,1282 
Tayloe  v.  Merchants'  Ins.  Co.,  9  Howard,  390,  .  .  17,  1813 

Taylor  v.  Briggs,  2  Carr.  &  P.  525,  ....  144 

V.  Curtis,  1  Holt,  192  ;  6  Taunt.  608  ;  2  Marsh.  R.  309  ;  4  Camp.  337, 

1310,  1310 

V.  Lowell,  3  Mass.  331,      508,  720,  720,  720,  720,  723,  724,  726,  734, 

735,  771,  996,  1820,  1849,  1993 

V.  M' Vicar,  6  Esp.  27, 2052 

V.  Popham,  2  Br.  Ch.  Cas.  168, 771 

V.  Sumner,  4  Mass.  56,  ...  .  1823,  1825 

V.  The  Cato,  Pet.  Adm.  R.  48, 1719 

V.  Wilson,  15  East,  324,         .  .  .  341,  473,  480,  590 

V.  Woodness,  Park,  510,  .....       781 


Teal  V.  Auty,  2  B.  &  B.  100,  .....  14 

Teasdalc  V.  Charleston  Ins.  Co.,  2  Brev.  190,    .  .  .      1669,1741 

Tenet  v.  Phoenix  Ins.  Co.,  7  Johns.  363,      ....  961 

Tcnnaut  v.  Henderson,  1  Dow's  Pari.  Cas.  324,  .  .  .    1002 

V.  Eliot,  1  Bos.  &  Pull.  3,  .  .  .  .1908 

Tennessee  Marine  Ins.  Co.  v.  Scott,  14  Missouri  R.  (by  Gardenhire,)  46 

Thatcher  u.  Bellows,  13  Mass.  Ill,  ....  856 

Thayer  v.  Middlesex  Mut.  F.  Ins.  Co.,  10  Pick.  336,     .  .  17,  20 

Thellusson  v.  Bewick,  1  Esp.  77,    .  .  .  .  .  1231 

D.  Fcrgusson,  Douglas,  346,  .  .       773,915,945,1001 

u.  Fletcher,  Douglas,  301,        ....  211 

u.  Fletcher,  1  Esp.  73,         .  .  .  .  .1692 

V.  Shcddcn,  5  B.  &  P.  228,      .  .  .  .  2137 

V.  Staples,  and  the  same  v.  Pigou,  Doug.  351,  n.,        772,  773,  945 

Thirty  Hogsheads  of  Sugar  (Bontzon  Claimant)  v.  Boyle,  9  Cr.  191,         238 
Thomas  v.  Graves,  1  Rep.  Constitutional  Ct.  308,  .  .  2119 

V.  Foylc,  5  Esp.  88,   .  ,  .  .  .         2124,  2126 

V.  Pvoyal  Exoli.  Assurance  Co.,  1  Price,  195,         .  .      432,  432 

u.  Withers  5  T.  R.  117,         .  .  .  .  .195 

Thompson  r.  Barker,  1  Root,  64,  .  .  .  .  1001 


TABLE   OF   CASES.  IxXV 

Thompson  V.  Buchanan,  4  Brown's  Pari.  Cas.  482,      .  .  529,571 

V.  Charnock,  8  T.  R.  139,        .  .  .  .58,  1940 

V.  Donaldson,  3  Esp.  63,    .  .  .  .  .        925 

V.  Hunter,  2  Mood.  &  11.  251  n.,  .  .  .  1431 

■ f.  Leake,  1  Madd.  39,         .....      2124 

V.  Perkins,  3  Mason,  232,         ....  1854 

V.  Read,  12  Serg.  &  Rawle,  440,       1115,  1115,  1116,  1886,  1899 

V.  Redman,  11  Mees.  &  Welsby,  487,  .  .  1924 

u.  Rowcroft,  4  East,  34,     ....         1649,1740 

V.  Royal  Exch.  Ass.  Co.,  1  JNIaule  &  Selwyn,  30,  1166,  1173 

V.  Royal  Exch.  Ass.  Co.,  16  East,  214,       .  .         1766,1773 

V.  Stewart,  3  Conn.  R.  171,     ....  2050 

V.  Taylor,  6  T.  R.  478,      .  .  .  .  .        332 

v.Whitmore,  3  Taunton,  227,  .  .  .1099,1758 


Thomvris,  The,  Edw.  Adm.  R.  17,      .  .  .  .  .278 

Thorndike  v.  Boardman,  4  Pick.  471,       ....  1009 

y.  Stone,  11  Pick.  R.  183,  .   950,  1265,  1484a,  1568,  1847b 

Thorne  v.  Deas,  4  Johns.  84,         .  .  .        1861,  1866,  1867,  1885 

V.  Hicks,  7  Cowen,  797,         .  .  .  .  .398 

Thornier  v.  Hebson,  2  Barn.  &  Aid.  513,  .  .  1528,  1558 

Thornton  y.  Knight,  16  Sim.  509,       .....        1939 

r.  Lance,  4  Camp.  231,  ....     217,2153 

I'.  Roval  Exch.  Ass.  Co.,  Peake,  25,  .  .  .2112 

V.  U.  S.  Ins.  Co.,  3  Fairfield,  Maine  R.  150,        .  1415,  1455 

Thurston  u.  Koch,  4  Dall.  348,  ....  361,1251 

f.  Murray,  3  Binney,  326,  ....  2090 

Thurtell  v.  Beaumont,  8  J.  B.  Moore,  612 ;  1  Bing.  339,  .        2080,  2154 

Tidmarsh  v.  Wash.  F.  &  M.  Ins.  Co.,  4  Mason.  439,  561,  719,  724,  2152, 

2157 
Tidswell  v.  Angerstein,  Peake,  151,  ....  293 

Tierney  v.  Etherington,  1  Burr.  348,     .  .  .  .  119,  941,  997 

Tillou  V.  Kingston  Mut.  F.  Ins.  Co.,  7  Barbour,  5  70  ;  1  Selden,  405,         636, 

868,  872,  872  a,  880 
Tilton,  The,  5  Mason,  475,  .....  1524,  1569 

Tindall  v.  Bell,  11  Mees.  &  Welsby,  228,       ....        1098 

v.  Brown,  1  T.  R.  167,        .....  1953 

Tinkler  v.  Walpole,  14  East,  226,  .....  2124 
Titcomb  v.  Thomas,  5  Greenleaf,  282,      .  .  .  .  .80 

Tittemore  v.  A^erm.  Mut.  Ass.  Co.,  20  Vermont  R.  546,         .  .         880 

Tobago,  The,  5  Chr.  Rob.  218,     .  .        '     .  .  .  263 

Todd  V.  Reed,  4  B.  &  Aid.  210,  .....      1883 

Tolman  v.  Manuf.  Ins.  Co.,  1  Cushing's  R.  (Mass.)  73,     .  .  192 

Tom  V.  Smith,  3  Caines,  245,  ....  1503,  1674 

Tonge  y.  Watts,  2  Strange,  1251,  .  .  .  .  .329 

Toppan  V.  Atkinson,  2  Mass.  365,  ....  393,  416,  423 
Toulmin  v.  Anderson,  1  Taunton,  227,    .  ,  .  .    1081,  2022 

V.  Inglis,  1  Campbell,  421,  .  .  .  .  .  982 

Touteng  v.  Hubbard,  3  Bos.  &  Pull.  291,  .  .  .      915,  1111 

Townsend  v.  AVeld,  8  Mass.  146,       .....  66 

Towson  w.  Guyon,  Park  on  Insurance,  438,         .  .  .  1000 

Traders'  Ins.  Co.  v.  Robert,  9  Wend.  404,  474,  81,  105,  289,  881,  1973, 

1987 
Tracy  v.  Wood,  3  Mason's  R.  132,  ....  1885 

Treadwell  v.  Union  Ins.  Co.,  6  Cowen,  270,  708,  710,  1602,  1766,  1769 

Tremenhere  u.  Tresilian,  3  Keb.  91  ;  1  Sid.  453,  .  .  1583 

Trench  v.  Chenango  County  Mut.  Ins.  Co.,  7  Hill,  122,  .     70,  870,  872  a 

Trende  Sostre,  The,  6  Chr.  Rob.  390,  n.,  ...        262,  835 

Trenholm  r.  Alexander,  2  Brev.  238,  .  .  .     2066,  2173,  n. 


Ixxvi  TABLE    OF   CASES. 

Trident,  The,  1  Wm.  Kob.  33,     .....      289,1565 

Triheten,  The,  6  Chr.  Rob.  65,  ....  .  829 

Trott  V.  Wood,  1  Gallison,  443,  .  .  .  .  .  .138 

Truman  v.  Child,  1  Brown's  C.  C.  R.  94,       .  .  .  .1937 

Trumbull  v.  Portage  County  Ins.  Co.,  12  Ohio  R.  305,    .  .  .880 

Truseott  v.  Christie,  2  Brod.  &  Bing.  320  ;  5  Moore,  33,        .  .  332 

Tucker  v.  Juhel,  1  Johns.  20,     ......     1154 

V.  United  M.  &  F.  Ins.  Co.,  12  Mass.  R.  288,         .  .  1115 

Tudor  u.  Macomber,  14  Pick.  34,  ....       1361,1365 

Tullock  V.  Boyd,  1  J.  B.  Moore,  174  ;  7  Taunt.  471 ;  1  Holt,  487,     246,  2124 
Tunno  u.  Edwards,  12  East,  488,     ....  1203,1695 

Turley  v.  North  American  Fire  Ins.  Co.,  25  Wend.  374,  1808,  1809,  1813 
TurnbuU  v.  The  Ship  Enterprise,  Hopkins's  Adm.  Dec.  17;  S.  C.  Condy's 
Marsh.  741b,  n.,  ....        1565,1568 


Turner  v.  Burrows,  5  Wend.  544  ;  8  id.  144, 
V.  Protection  Ins.  Co.,  25  Maine,  515, 


Scottish  Mar.  Ins.  Co.,  Feb.  1851,  Assurance  Magazine  (London), 


1-45,  393,  407,  1953 
1004, 1022 


1740 

.     1892 

.      829,  838 

.       165 

.     247,  249 

.       271 

.    1099, 1496,  2139 

.     1719 

640,  881,  1712,  1948 

515 

1844, 1845 

1819,  1834 

.       784 


April,  1852,  p.  285, 
Turpin  v.  Bllton,  5  Mann.  &  Grang.  455, 
Tutela,  The,  6  Chr.  Rob.  177, 
Twee  Frienden,  The,  3  Chr.  Rob.  29,   . 
Twee  Gebroeders,  The,  Edw.  Adm.  R.  95, 
Twee  Juffrowen,  The,  4  Chr.  Rob.  242, 
Twemlow  v.  Oswin,  2  Camp.  85,      . 
Two  Catherines,  The,  2  Mason,  319,     . 
Tyler  v.  iEtnalns.  Co.,  12  Wend.  507;  16  id.  385, 

V.  Carlton,  7  Greenleaf's  R.  175,       . 

V.  Horn,  1  Park,  329, 

Tyrie  v.  Fletcher,  Cowper,  666, 
Tyson  v.  Gurney,  3  T.  R.  477,  . 

u. 

Uhde  V.  Walters,  3  Camp.  16,  .  .  .  .  .  144 

Underbill  v.  Agawam  Mut.  Fire  Ins.  Co.,  6  Cushlng's  R.  440,    553,  638,  1481, 

1812,  1813, 2173,  n. 
Underwood  v.  Robinson,  4  Camp.  138,  .....  1579 
Union  Bank  v.  Knapp,  3  Pick.  96,  .  .  .  .  .  2098 

V.  Laird,  2  Wheat.  390,      .....     1797 

Union  Ins.  Co.  1).  Russell,  Anthon's  N.  P.  Cases,  128,         .  .  1718 

f.  Tysen,  3  Hill,  118,     ....  953,953 

United  Ins.  Co.  v.  Lenox,  1  Johns.  Cases,  377 ;  2  id.  443  ;  3  Caines,  251,    1741 

V.  Robinson,  2  Caines,  280;  1  Johns.  592,      1590,  1736,  1868 

V.  Scott,  1  Johns.  106,         .  .  .    1722,1732,1732 

United  States  v.  Amedy,  11  Wheat.  392,  ....     2110 

V.  Grundy,  3  Cranch,  337,    .  .  .  .  195 

V.  Hunt,  2  Story's  R.  121,  .  .  .  .726 

V.  Ins.  Co.  of  Alexandria,  2  Cranch,  C.  C.  R.  266,  .         1877  a 

V.  La  Jeunc  Eugenie.     See  La  Jeune  Egenie. 

U.Jones,  4  Uall.  412,      .....     2110 

V.  McDaniclI,  7  Pcters's  Sup.  Ct.  R.  1,         .  .  122 

i;.  Peters,  3  Dall.  121,      .  .  .  .  .321 

V.  The  Anthony  !RIangin,  3  Cranch,  356,  n. ;  7  Peters's  Adm. 

R.452, 195 

V.  The  J'aul  Sherman,  1  Pcters's  C.  C.  R.  98,    .  .       210 

V.  Wilder,  3  Sumner,  308,    .  .  .  1343,  1345 

V.  I960  Bags  of  Coffee,  8  Cranch,  398,  .  .  .195 

Upton  V.  Salem  Commercial  Ins.  Co.  8  Mete.  605,  .  .  968 


TABLE   OF   CASES.  Ixxvii 

Urquhart  v.  Barnard,  4  Taunt.  450,       ....  66,  1005 

V.  Mclver,  4  Johns.  103,  .  .  .  .  1917,  1918 

Usheri'.  Noble,  12  East,  639,     ....  1219,1232,1460 

Usparicha  v.  Noble,  13  East,  332,    ....         151,  245,  248 
Utica  Ins.  Co.  v.  Kipp,  8  Cowen,  20,     .  .  .  .  .11 


Vairin  v.  Canal  Ins.  Co.,  10  Ohio  R.  561,  ....  294,  2052 
Vallancc  v.  Dewar,  1  Camp.  503,  .  .        593,  690,  998,  1003,  1093 

Vallejo  V.  Wheeler,  Lofft,  645;  Cowper,  143,      698,  1024,  1062,  1066,  1070, 

1072,  1074,  1079,  1081,  1083,  1083,  1144 
Vanbrynen  v.  Wilson,  9  East,  324,  ....  2030 

Vandesraff  V.  Medlock,  3  Porter's  (Ala.)  R.  389,  .  .  .     1939 

Vandenheuvel  v.  Church,  2  Johns.  Cases,  127,  173,  n.;  3  id.  486,      527,  550, 

626,  671,  765 

V.  United  Ins.  Co.  2  Johns.  Cases,  127,  451 ;  3  id.  486,      527, 

550,  626,  757,  845,  1057,  1339,  2109 

1  Johns.  R.  406,  .  .  1599,  1613 

Vanderplank  v.  Miller,  1  Moody  &  M.  169,      .  .  .  •     1420 

Vandervoort  v.  Columbian  Ins.  Co.,  3  Johns.  Cases,  137,   .  .  2057 

V.  Smith,  2  Caines,  155,  66,  133,  660,  847,  958,  2050,  2051 

Vandyck  v.  Hewitt,  1  East,  96,  .....     1846 

Vandyke  v.  Whitmore,  1  East,  475,  ....  244 

Vanharthals  v.  Halben,  1  East,  487,      .  .  .  .  .      244 

Van  Natta  v.  Mutual  Security  Ins.  Co.,  2  Sandford's  R.  490,         .  2020 

Van  Omeron  u.  Dowick,  2  Camp.  42,     .  .  .  1587,2098,2100 

Vasse  V.  Ball,  2  DaU.  270,  .....  278,  816,  2109 
Vaughan  v.  Lemcke,  8  J.  B.  Moore,  646  ;  7  D.  &  R.  236  ;  1  Bing.  473,  245 
Vennell  v.  Garner,  1  Cromp.  &  M.  21,  .  .  .  .  .     1420 

Venus,  The,  8  Cranch,  253,  .  .  .  155,  159,  159,  794 

Verdon  v.  Wilmot,  3  Doug.  74 ;  Park,  500,  n.  .  .  .  .781 

Vernon  v.  Smith,  ^  Barn.  &  Aid.  1,  .  .  .  .  103 

.       775- 

781 

.     1115 

830 

790,  805,  814 

1565 

265,  2124 

942 

1249,  1568 

261,  918 


Vezian  v.  Grant,  Park,  485, 
Victorin  v.  Cleve,  2  Strange,  1250, 
Vigers  v.  Ocean  Ins.  Co.,  12  La.  R.  367, 
Vigilantia,  The,  6  Chr.  Rob.  122,     . 

1  Chr.  Rob.  1, 

Vilibia,  The,  1  W.  Rob.  Adm.  R.  1, 
Vinal  V.  Burrill,  16  Pick.  401,   . 
Violett  V.  AUnut,  3  Taunt.  419, 
Virgin,  The,  8  Peters's  Sup.  Ct.  R.  538, 
Visger  v.  Prescott,  5  Esp.  184, 

Vlierboom  v.  Chapman,  13  Mees.  &  Wels.  230,  .  .       1449,  1642 

Von  Lindenau  v.  Desborough,  8  B.  &  C.  586  ;  3  C.  &  P.  353,    357,  570,  572, 

646,  647,  654,  655,  659,  898,  904,  2159 
Von  Tungeln  v.  Dubois,  2  Camp.  151,         .  .  .  .    626,  674 

Vos  V.  Robinson,  9  Johns.  192,  ....  1803,  1812,  1813 

V.  United  Ins.  Co.,  1  Caines's  Cases  in  Error,  vii.;  2  Johns.  Cases,  180, 

469,  ....  840,  1048,  1068,  1844,  2109 

Vose  V.  Eagle  Life  &  Health  Ins.  Co.,  6  Cushing's  R.  42,    641,  643,  647,  667, 

1876 

V.  Handy,  2  Greenleaf,  322,  .....         80 

Vredenburgh  r.  Gracie,  4  Johns.  444,  n.,   .  .  .  .  939 

Vreede  Scholtys,  The,  5  Chr.  Rob.  5,  n.,  .  .  .  239,  805,  812 

Vriendschap,  The,  4  Chr.  Rob.  166,  ....     169,  232 

Vrierboom  v.  Chapman,  13  Mees.  &  W.  230,    ....     1449 


Ixxviii  TABLE   OF   CASES. 

Vrow  Anna  Catlierina,  The,  5  Chr.  Rob.  15,  .            .          161,  800,  815 

Vrow  Barbara,  The,  3  Chr.  Rob.  158,  n.,  .            .            .            .842 

Vrow  Cornelia,  The,  Edw.  Adm.  R.  349,  ....              247 

Vrow  Elizabeth,  The,  5  Chr.  Rob.  2,     .  .            .            •           239,  804 

Vrow  Hermina,  The,  1  Chr.  Rob.  163,  ....     256,  790 

Vrow  Johanna,  The,  2  Chr.  Rob.  109,  .  .            .            .            .831 

Vrow  Judith,  The,  1  Chr.  Rob.  150,  .            .      826,  829,  829,  830,  830 

Vrow  Margaretha,  The,  1  Chr.  Rob.  336,  .            .        255,  260,  791,  796 

W. 

Waddell  v.  Columbian  Ins.  Co.,  10  Johns.  61,  .  .  1338,  1535,  1613 
Waddington  v.  United  Ins.  Co.,  17  Johns.  23,  .  .  .  .  1819 
Wadsworth  i;.  Pacific  Ins.  Co.,  4  Wend.  33,  .  970,997,1773,1777 
Wainhouse  f.  Corrie,  4  Taunt.  178,  .....  210 
Wainwright  v.  Bland,  1  Tyrw.  &  G.  417 ;  1  Mees.  &  "Wels.  32,  .  358,  650 
Waithman,  Ex  parte,  2  Deac.  &  Chitty,  412,  ....  95 
Wake  V.  Atty,  4  Taunt.  493,  .  '  .  .  .  .  210,  612 
AVakefield  v.  Martin,  3  Mass.  558,  .  .  .  .  .77 
Walden  v.  Fire  &  Mar.  Ins.  Co.,  12  Johns.  128,  513,  .  601,  661,  707 
V.  Le  Roy,  2  Caines's  R.  263,  ....       1320,  1328 

V.  Louisiana  Fire  Ins.  Co.,  12  La.  R.  134,  .  .  9, 11,  647 

V.  New  York  Firemen  Ins.  Co.,  12  Johns.  128,     539,  601,  661,  1948 

V.  Phcenix  Ins.  Co.,  5  Johns.  310,         218,  907,  913,  914,  1111,  1700 

Waldron  v.  Combe,  3  Taunt.  162,  ....       1456,  2051 

Walker  v.  Birch,  6  T.  R.  258,  .....  1915 

V.  Maitland,  5  Barn.  &  Aid.  171,  .  .  378,  733,  1049 

r.  Protection  Ins.  Co.,  29  Maine  R.  317,     .  .     949,1495,2112 

V.  United  States  Ins.  Co.,  11  Serg.  &  Rawle,  61,       1313, 1315,  1709 

V.  Witter,  1  Doug.  1,  ....  .  2106 

Wallace  v.  Ins.  Co.,  4  La.  R.  289,  .  .  .  125,  1213,  1754 

V.  Ohio  Ins.  Co.,  4  Ohio  R.  234,    ....  1431 

V.  Tellfair,  2  T.  R.  188,  n.,       .  .  .  1885,  1892,  1898 

Waller  v.  Louisiana  Ins.  Co.,  9  Martin,  N.  S.  276,  .  .  1426,  1428 

Wain  V.  Thomson,  9  Serg.  &  Rawle,  115,  .  .  .       1474,  1773 

Walpole  V.  Ewer,  Marsh.  Ins.  762;  Park,  Ins.  629,  467,  1169,  1416,  2110 
Waltham  v.  Thompson,  1  Marsh.  R.  376,    .  .  .  .  781 

Walton  V.  Betlmne,  2  Brevard's  R.  453,  ....     2109 

V.  Louisiana  State  Mut.  Fire  Ins.  Co.,  2  Rob.  (La.)  R.  563,  881 

Want  r.  Blunt,  12  East,  183,  .....       74,897 

Waples  V.  Eames,  2  Strange,  1243,        .  .  .  .  .968 

Ward  r.  AVood,  13  Mass.  539,  .  .  221,  221,  974,  1030,  1958 

Warder  r.  Goods  saved,  &c.,  1  Peters's  Adm.,  Dec.  31,      .  1028,1583 

r.  Ilorton,  4  Binn.  529,  .  .  .  174,373,1251 

Waring  v.  Scott,  4  Taunt.  605,         .....  244 

Warre  i'.  Miller,  1  C.  &  P.  237;  7  D.  &  R.  1 ;  4  B.  &  C.  538,  333,  1014 

Warren  r.  Manufacturers'  Ins.  Co.,  13  Pick.  518,         .  .    221,  703,  704 

V.  Middlesex  Mut.  Fire  Ins.  Co.,  21  Conn.  R.  444,  .  874  a 

I'.  Ocean  Ins.  Co.,  16  Maine  439,  .  .  .  24,110,510 

V.  United  Ins.  Co.,  2  Johns.  231,  .  .  .         695,  2152 

Warrior,  The,  2  Dods.  Adm.  R.  288,  .  •  .  .  1524 

AVarwick  v.  Slade,  3  Camp.  127,  .  .  .  .  .     1871 

V.  Scott,  4  Camp.  62,         .  .  .  .  .       68,  780 

Washington  Ins.  Co.  v.  Reed,  20  Ohio  R.  (by  Lawrence,)  199,  .       188 

Washington  v.  Ins.  Co.  of  North  America,  2  Wash.  C.  C.  R.  152,  480,  2096 
Watchorn  v.  Langlbnl,  3  Camp.  422,  ....  489 

Waters  r.  Allen,  5  Hill,  421,     .  82,106,220,1833,1834,1846 


TABLE   OF   CASES. 


Ixxix 


Waters  v.  Merchants'  Louisville  Ins.  Co.,  1  McLean's  R.  275  ;  11  Peters's  Sup. 

Ct.  R.  213,  .  .  .  733,1049,1096,1137 

Watkins  v.  Durand,  1  Porter's  (Ala.)  R.  251,  .  .  •  388 

Watson  V.  Clark,  1  Dow,  144, G90,  724,  725 

V.  Delaficld,  2  Caines,  224  ;  1  Johns.  150;  2  id.  526,    .  .       561 

V.  Ins.  Co.  of  North  America,  2  Wash.  C.  C.  R.  152, 480 ;  3  id.  1,    849, 

1192,  1196,  1494,  1688,  1956,  2144,  2152 
1  Binn.  47,  .  .  .  1688 

V.  King,  4  Camp.  272, 2094 

1  Starkie,  121, 


V.  Mainwaring,  4  Taunt.  763,   . 
V.  Marine  Ins.  Co.,  7  Johns.  57, 


2083 

894,  2164 

.    1333,  1742,  1742 

Watt  V.  Morris,  1  Dow,  32, 701,703 

Way  V.  Modigliani,  2  T.  R.  30, 992 

Waymell  v.  Reed,  5  T.  R.  599, 1846 

Webbt'.  Dickenson,  11  Wend.  R.  62,         .  .  .  .  1743 

r.  National  Fire  Ins.  Co.,  2  Sandford's  Sup.  Ct.R.  497,  .      489 

V.  Protection  Ins.  Co.,  6  Ohio  R.  456,  .  .    1429,  1815,  2147 

14  Missouri  R.  (by  Gardenhire,)  3,    1098,  1161 

V.  Thompson,  1  Bos.  &  Pull,  5, 781 


Webster  v.  Detastet,  7  T.  R.  157, 

V.  Foster,  1  Esp.  407,  . 

Wedderburne  v.  Bell,  1  Camp.  1,    . 

Weeks  v.  The  Catherine  Maria,  2  Peters's  Adm.  R.  424, 

Weir  V.  Aberdeen,  2  Barn.  &  Aid.  320, 

Welch  V.  Mandeville,  1  Wheat.  233, 

Welles  V.  Boston  Ins.  Co.,  6  Pick.  182,  . 

V.  Gray,  10  Mass.  R.  42,      . 

Wells  V.  Archer,  10  Serg.  &  Rawle,  412, 

V.  Hopwood,  3  B.  &  Ad.  20, 

V.  Philadelphia  Ins.  Co.,  9  Serg  &  Rawle,  103, 


705 


V.  Williams,  1  Salk.  45 ;  1  Lutw.  34,  35;  1  Ld.  Raym.  282, 


Welsh  V.  Barrett,  15  Mass.  380, 

Welvaart,  The,  1  Chr.  Rob.  122, 

Welvaart  Van  Pillaw,  The,  2  Chr.  Rob.  128, 

Wendover  v.  Ilogeboom,  7  Johns.  308, 

West  V.  Sutton,  1  Salkeld,  2,  .  .  . 

Westbury  v.  Aberdeen,  2  Mees.  &  Wels.  267,. 

Westerdell  v.  Dale,  3  T.  R.  306,     . 

Western  v.  Wildy,  Skinner,  152, 

Weston  V.  Ernes,  1  Taunt.  115,       • 

■  V.  Penniman,  1  Mason,  306, 

Westwood  V.  Bell,  4  Camp.  349 ;  Holt,  122, 

Wharton  v.  De  La  Rive,  Park,  573  ;  Marsh.  Ins.  642,  n., 

Wheatland  V.  Gray,  6  Mass.  124,     . 

Wheelwright  v.  Depeyster,  1  Johns.  472, 

White  V.  Baring,  4  Esp_.  22, 

V.  Mann,  26  Maine,  361, 

V.  Ship  Dajdalus,  1  Stewart's  (Canada)  R.  130, 

V.  Warren,  2  Mer.  459,  .... 

Whitehead  v.  Bance,  Park,  122,      . 

V.  Price,  2  C.  M.  &  R.  447, 

V.  Vaughan,  Cook's  Bankrupt  Laws,  579, 

Whitehill's  Case,  5  Chr.  Rob.  60, 

Whitney  v.  American  Ins.  Co.,  3  Cowen,  210, 

V.  Haven,  13  Mass.  172, 

r.  New  York  Firemen  Ins.  Co.,  18  Johns.  208, 


.  212,  1892 

.   615 

702 

.  1719 

720,  726,  752 

85 

.  1277 

1337 

80,  98,  99,  100 

1758 

204,  292,  421 

151,  2030 

2098 

.   278 

830 

265,  2124 

2030 

.   620 

2124 

979,  988 

66 

76, 2124 

1916,  1916 

211,  1846 

1115 

.  2104 

313 

.   295 

305 

.   771 

1521 

.   872 

1920,  1923 

.   165 

441,  1197 

66,  551 

1142,  1448,  1448, 

1642 


IXXX  TABLE    OF   CASES. 

Whitney  r.  Ocean  Ins.  Co.,  14  La.  485,  .... 

Whiton  r.  Old  Colony  Ins.  Co.,  2  Mete.  1,  .  .  .  .  455 

Wliitteridge  v.  Norris,  6  Mass.  125,        .  .  .  .  .     1289 

Wiebe  v.  Simpson,  Selwyn's  N.  P.  995,         ....  1815 

Wienholt  v.  Roberts,  2  Camp.  586,  ....  1925,  2044 
Wiggin  V.  Amory,  13  Mass.  118,      .  .  .  .    1023,  1029,  1030 

— - —  V.  American  Ins.  Co.,  18  Pick.  158,       .  .  .  .903 

V.  Boardman,  14  Mass.  12,  .  .  .  .66,  1029,  1030 

V.  Mercantile  Ins.  Co.,  7  Pick.  271,       .  .  .  456,  462,  478 

V.  Suffolk  Ins.  Co.,  18  Pick.  145,  106,  206,  365,  903,  1253,  1797, 

1839,  1961 
Wirglesworth,  v.  Dalllson,  1  Doug.  190,      .  .  .  .  132 

Wiglitman  v.  Macadam,  2  Brevard,  230,  ....     1326 

V.  Western  M.  &  F.  Ins.  Co.,  8  Rob.  (La.)  442,  1811,  1813 

Wilbraliam  v.  Wartnaby,  1  Lloyd  &  Welsby,  144,         .  .         909,  1059 

AYilcocks  V.  Union  Ins.  Co.,  2  Binn.  574,     .  822,  823,  1062,  1068,  1075 

Wilbelmina,  The,  4  Chr.  Rob.  App.  4,  .  .  .  .  .278 

Wilkie  V.  Geddes,  3  Dow,  60,  .  .  .  .  .  702 

Wilkinson  v.  Clay,  6  Taunt.  110;  4  Camp.  171,  .  .  .     1882 

V.  Cowerdale,  1  Esp.  75,  ...    1867,  1885,  1892 

V.  Lindo,  7  Mees.  &  Wels.  405,         .  .  .  .413 

V.  Loudensack,  3  Maule  &  Sel.  117,       .  .  .  210 

I'.  Scott,  17  Mass.  249,  .  .  .  .  .515 

Willes  V.  Glover,  4  B.  &  P.  14,  .  .  .  615,  676,  1948,  1949 
William,  The,  1  Chr.  Rob.  214,  ,  .  .  .  .226 
Williams  v.  Amroyd,  7  Cranch,  424,  ....  2109 
V.  Chester  and  Holyhead  Railway  Co.,  5  Eng.  Law  &  Eq.  R.  (Press 

of  Little,  Brown  &  Co.,)  197  ;  S.  C.  15  Eng.  Jur.  828,        1872 

V.  Cole,  16  Maine  (4  Shepley's)  Rep.  207,  .  .        1765 

V.  Delafield,  2  Caines,  329,     .  .  .  .  .620 

u.  Despard,  5T.  R.  112,  .  .   '         .  .  .195 

V.  Fire  Ins.  Co.,  29  Maine  R.  465,     ....    1932 

V.  Kennebec  Mut.  Ins.  Co.,  31  Maine  Rep.  455,  .  .  1767 

V.  Leper,  3  Burrow,  1886,     .....    1853 

V.  London  Ass.  Co.,  1  M.  &  S.  318,        .       1320,  1350,  1385,  1387 

V.  Marshall,  1  J.  B.  Moore,  162;  2  Marsh.  292;  6  Taunt.  390  ;   7 

id.  468,         ......      246,  776 

V.  New  England  Mut.  Fire  Ins.  Co.,  31  Maine  (1  Reed)  R.  219, 

642,  883,  1475,a,  1741,  1795a 

17.  Ocean  Ins.  Co.,  2  Metcalf,  303,  .  .  1928,  1964 

V.  Shee,  3  Campbell,  469,     .....     1002 

V.  Smith,  2  Caines's  Cas.  in  Error,  110  ;  2  Gaines's  R.  13,     7,  300, 

307,  427,  826,  834,  1134,  1249,  1517,  1715,  1716 

V.  Stcdman,  Holt,  126  ;  Skin.  345,  .  .  .988 

r.  Suffolk  Ins.  Co.,  13  Pet.  S.  C.  R.  415  ;  3  Sumn.  270,  510,     1049, 

1050,  1325,  1334,  1588,  1599,  1719 

r.  Thorpe,  2  Sim.  257,  .  .  .  .  .95 

V.  Younghusband,  1  Starkie,  139,  ,  .  .  2103 

Willi;. ms's  Adm'r  v.  Cincinnati  Ins.  Co.,  AVright's  (Ohio)  R.  542,      286,  588, 

881 
Williamson  v.  Inncs,  8  Bing.  81,  n.,      .  .  .  .  332,  944 

u.  Tunno,  1  Brevard,  151,  ....  2109 

Wii  ngs  V.  Consc(iua,  Pet.  C.  C.  R.  172,  301,  .  .  .  .1237 
AVilliH  {'.  I'ooIp,  Mar.sli.  Ins.  771,  .....  894 
Willison  /).  I'attcrson,  1  J.  B.  IMoorc,  133  ;  7  Taunt.  438,  .  147,  153 
Wilmcr  v.  The  Smilax,  2  I'et.  Adm.  R.  295,  n.,  .  .  1168,  1170,  1568 
Wil.soi.  r.  Crcightoii,  Marsh.  Ins.  297  ;  3  Dons.  132,  n.,  .  1917,  1924 
r.  J-mkctt,  3  Burrow,  1361,             .    ""        .             .               528,1938 


TABLE   OF   CASES.  Ixxxi 

Wilson  V.  Foster,  2  Marsh.  R.  425  ;  6  Taunt.  25,  .  .  .     1591 

u.  Marryatt,  1  B.  &P.  480;  8  T.  R.  31,     ...  231 

r.  Millar,  2  Starkie,  1, 1562,1623 

V.  Royal  E.xcli.  Ass.  Co.,  2  Camp.  623,        338,  340,  1234,  1602,  1766 

V.  Smith,  1  W.  Bl.  507;  3  Burr.  1550,  .  .  .      1761 

r.  United  Ins.  Co.,  14  Johns.  227,  .  .  .  1162 

Wilton  V.  Reaston,  Park,  20,    .  .  .  .  .  .382 

Winder  v.  Wise,  1  D.  &  L.  240, 840,  1051 

AVinn  V.  Col.  Ins.  Co.,  12  Pick.  279,     .  .  .  1524,  1539,  1543 

Winsor  v.  Dillaway,  4  Metcalf,  221,  ....  138 

Winter  u.  Plaldimand,  2  B.  &  Ad.  649,  .  .  338,1234,1404 

Winthrop  v.  Union  Ins.  Co.,  2  Wash.  C.  C.  R.  7,         1001,  1004,  1018,  1031, 

2057 
Witherlee  v.  Ocean  Ins.  Co.,  24  Pick.  68,  .  •  .        2173,  n. 

Wittingham  v.  Thornborough,  2  Vern.  206 ;  Prac.  in  Chan.  20,         211,  528, 

1938 
WohronzofF,  The  Compte  de,  1  Chr.  Rob.  205,  .  .  .       223 

Wolcott  V.  Eagle  Ins.  Co.,  4  Pick.  429,         430,  452,  453,  460,  471,  479,  591, 

1181,  1196,  1197,  1204,  1208,  1802,  2126 
Wolfarth,  The,  Edw.  Adm.  R.  365,  ....  247 

Wolfe  t'.  Howard  Ins.  Co.,  1  Sandf.  124,  .  .  .  .1232 

Wolfl"r.  Horncastle,  1  B.  &  P.  316,  309,  311,  382,  393,  423,  1858,  1889, 

1965,  2021 

V.  Koppel,  5  Hill's  R.  448  ;  2  Denio,  368,  .  .  1853 

Wood  V.  Hartford  Fire  Ins.  Co.,  13  Conn.  R.  533,     .  .  .757 

V.  Hickok,  2  Wend.  501,  .  ....  2119 

V.  Lincoln  and  Kennebec  Ins.  Co.,  6  Mass.  479,  1524,  1526,  1526, 

1535,  1556,  1559 

V.  New  England  Mar.  Ins.  Co.,  14  Mass.  31,  .      953,  1118,  1154 

Worsley,  2  II.  Bl.  574,  .  .  .70,  439,  885,  2130 

Woodbridge  v.  Perkins,  3  Day,  364,        .  .  .  .  .95 

Woodrop  Sims,  The,  2  Dodson's  Adm.  R.  83,  .  .  .        1416 

Woodruff  I'.  Columbus  Ins.  Co.  5  La.  Annual  R.  697,    .  .  .15 

Woodward  v.  Larking,  3  Esp.  286,  .  .  .  .  .2124 

Woo  dridge  v.  Boydell,  Doug.  16,  .  .  .  .         992,  992 

Woolfy.  Beard,  8  C.  &P.  373,         .....         1420 

V.  Claggett,  3  Esp.  257,     .....      703,1018 

Woolmer  v.  Muilman,  3  Burr.  1419 ;  1  W.  Bl.  427,  .  .  764 

Workman  v.  Ins.  Co.,  2  Louisiana  R.  507,  ....   492 

Worsley  r.  Wood,  6  T.  R.  710,         .  .       70,439,756,885,2026,2130 

Wright  V.  Barnard,  2  Esp.  700,  .....     2096,  2109 

V.  Butler,  6  Wendell,  284,     .  .  .  .  .2109 

v.  Pole,  1  Ad.  &  El.  621,  .  .  .  181,462,495 

V.  Shiffner,  11  East,  515  ;  2  Camp.  247,       .  .  .  775 

V.  Sun  Fire  Office,  Rawle  &  Man.  819,  .  .  .  .   495 

V.  Welbie,  1  Chit.  49  ;  Jeremy's  Index,  1819,  p.  74,     217,  2021,  2126 


Yallop,  Ex  parte,  15  Ves.  60,  68,  .  .  .  265,  289,  2124 

Yates  i\  Maxell,  2  J.  B.  Moore,  297  ;  8  Taunt.  302,  .  .        1083 

V.  Railston,  8  Taunt.  293,  ....  1083 

V.  Whyte,  4  Bing.  N.  C.  272,  .  .  1711,  1796,  2163 

Yeaton  v.  Fry,  5  Cranch,  335,      .....  1159 

Young  V.  Alexander,  8  East,  10,        .  .  .  .  .2124 

r.  Turing,  2  Mann.  &  Gr.  593  ;  2  Scott,  N.  R.  752,     1532,  1538,  1549 

Ysabel,  The,  1  Dods.  Adm.  Reports,  273,  .  .  .  1565 


Ixxxii  TABLE   OP   CASES. 


Zacliarie  r.  Orleans  Ins.  Co.,  5  Martin,  N.  S.  637,             .             .  968,969 

Zelder  Eust,  The,  6  Chr.  Rob.  93,       .             .            .             .  .272 

Zephyr,  The,  3  Mason,  341,          .....  162G 

Zino  V.  Louisiana  Ins.  Co.,  6  Martin,  N.  S.  62,            .            .  .      2109 


LIST  OF  AUTHORS  AND  TREATISES   CITED. 


Abbott  on  Shipping,     398,  1057,  IIGG,  1282,  1318,  1318,  1318,  1321,  1328, 

1334,  1344,  1390,  1394,  1452,  1580,  1719,  2005, 2091,  2124 

Alauzet,  Traite  des  Assurances,       .  .  .  .76, 109,  113,  388 

Amsterdam,  Kegulations  of,        .  .  .  .  .         5,  9,  1836 

Annesly  on  Insurance,         .  .  .  .  .  .  537 

Angell  and  Ames  on  Corporations,        ....  11,2013 

Angell  on  Fire  and  Life  Insurance,  ....  1095 

Antwerp,  Ordinance  of,  .  .  .  .  699,  771,  1313 

Arnould's  Marine  Insurance,    54,  216,  524,  537,  977, 1001, 1025,  1049,  1328, 
1422,  1606,  1674,  1704,  1740,  1756,  1761,  1773,  1838,  1849, 
1867,  2074 
Azuni,  ........  258 

Bacon,  Lord,  Law  Tracts,  .  .  .  .  .  .1416 

Beaumont  on  Fire  and  Life  Insurance,       .  .      1092,  1095,  1236,  1483 

Beawes,       1104,  1111,  1166,  1318,  1328,  1331,  1332,  1334,  1347,  1370,  1521 
Bell's  Commentaries,  ......  1318 

Benecke,      4G8,  1140,  1183,  1201,  1209,  1221,  1223,  1230,  1232,  1242,  1271, 
1273,  1285,  1288,  1296,  1297,  1298,  1309,  1310,  1315,  1318, 
1318,  1328,  1339,  1340,  1347,  1357,  1358,  1361,  1362,  1363, 
1367,  1387,  1394,  1404,  1407,  1408,  1410,  1422,  1428,  1429, 
1432,  1435,  1441,1461,  1718,  1764,  1779,  1783 
Bilboa,  Ordinance  of,     .  .  .  .  .  .  .     1183 

Blackstone's  Commentaries,  .  .  .  .  1111,  2003 

Boeckh's  Public  Economy  of  Athens,    ....       1167,1279 

Boucher's  Institution  au  Droit  Maritime,     .  .  .  .  1318 

Consolat  del  Mer,      .  .  .  .  .  .1318 

Boulay  Patv,  Cours  de  Droit  Com.,  3,  5,  8,  14,  301,  352,  360,  364,  523  a, 

991,  992, 1106, 1166,  1168, 1416, 1416, 1420, 1421, 1484a,  1737, 
1755a,  1847b,  2083,  2139 

Sur  Emerigon,  .....  8 

Browne's  Civil  and  Admiralty  Law,  .....  1318 
Bynkershoek,  Quest.  Juris  Publici,  232,  830,  1001,  1313,  1318,  1318,  1321 
Casa  Regis,  Disc,  5,  361,  364,  1080,  1094,  1251,  1286,  1308,  1310,  1311, 

1313,  1324,  1402,  1660,  1847  b. 
Chitty  on  Contracts,  ......     214,  219 

—  on  Pleading,        .  .        2011,  2014,  2021,  2025,  2030,  2037,  2042 

Cleirac.    See  Les  Us  et  Coutumes. 

Clift, 2018 

Code  de  Commerce,  9,  29,  176,  352,  360,  521,  918,  983,  1104,  1104,  1111, 
1166,  1168,  1170,  1183,  1230,  1249,  1281,  1282,  1286,  1287, 
1288,  1312,  1313,  1318,  1320,  1328,  1331,  1332,  1354,  13G0, 
1372,  1379,  1382,  1396,  1416,  1420,  1421,  1422,  1429,  1430, 
1681,  1660,  1679,  1705,  1719,  1736,  1755a,  2003 


Ixxxiv  LIST   OF  AUTHORS   AND   TREATISES   CITED. 

Collect.  Jurid.,     .......  813,  818 

Comyn's  Digest,         .......  2003 

Consolato  del  Mare,       .  .  .       223,  1313,  1318,  1361,  1379,  1390 

Copenhagen,  Ordinance  of,  ....    1099,  1229,  1318 

Cunningham's  Law  Dictionary,  .  .  .  .  .1269 

Dane's  Digest,  .......  1580 

Daniel's  Equity  Practice,  by  Perkins,    .....        81 

Danvers's  Abridgement,       ......  1960 

Denisart,  .  .  .  .  .  .  .  .176 

De  Vinq.  ad  Q.  Weytsen  des  Average,       .  .  .  .  1313 

Digest  of  the  Roman  Law,      1100,  1168,  1279,  1288,  1313,  1318,  1318,  1354, 

1373,  1375,  1382,  1390,  1394,  1400,  1717 
Doubousquie  de  L' Assurance,    ......     1416 

Dowdeswell  on  Fire  and  Life  Insurance,     ....  1098 

Droit  Civil,  Traites  sur  different  Matieres  de,  .  .  .  .     1416 

Droit  Hanseatique,  Cours  de,  .  .  .  .  1416,  1421 

Duer,  Marine  Insurance,         1,  9,  12,  13,  14,  17,  17,  17,  29,  76,  81,  131,  147, 
150,  166,  226,  232,  248,  260,  264,  271,  278,  281,  524,  537,  549, 
573,  582,  666,  672,  680,  791,  794,  797,  816,  825,  840,  992,  1116, 
1416,  1827,  1853,  1857,  1862,  1864,  1867,  1884,  1894,  1903, 
1905,  1926,  2074,  2123 
Ellis  on  Fire  and  Life  Insurance,    78,  79,  95, 179,  397,  402, 1484,  2012,  2021, 

2026 
Emerigon,     3,  5,  5,  13,  120,  123,  126,  149,  173,  205,  212,  223,  352,  382,  390, 
416, 432,  439,  463,  521,  583,  768,  769,  858,  983,  991,  992, 1048, 
1049,  1051,  1062,  1080,  1092,  1094,  1096,  1100,  1105,  1106, 
1107,  1108,  1115,  1115,  1116,  1129,  1138,  1168,  1182,  1183, 
1223,  1229,  1241,  1248,  1279,  1282,  1283,  1285,  1288,  1297, 
1307,  1309,  1312,  1318,  1318,  1323,  1331,  1332,  1336,  1336, 
1348,  1390,  1394,  1395,  1396,  1416,  1432,  1557,  1605,  1616, 
1660,  1678,  1687,  1705,  1708,  1726,  1736,  1737,  1767,  1819, 
1820,  1822,  1833,  1845,  1846,  1847  b,  1862,  2106,  2159 
Evans  on  Insurance,       .......       537 

Estrangin,  Notes  on  Emerigon,       .....  430 

Notes  on  Pothier,     .  .       352,1108,1115,1129,1660,1715 

Falconer's  Marine  Dictionary,         .  .  .  .  .  327 

Florence,  Ordinance  of,  ......  9 

French  Ordinance  of  Marine.     Sec  3farlne  Ordinance. 

Genoa,  Ordinance  of,  .  .  .  .  .  .         5,  9,  9 

Gould  on  Pleading,        .  .  •  .  .  .2014,  2025 

Greenlcaf  on  Evidence,     66,  81,  123,  125,  126,  131,  132,  143,  214,  217,  219, 
515,  1944,2011,  2116 

Grotius  de  Jur.  Bell., 228,270,1111,1420 

Hamburg,  Ordinance  of,      .  .  .      9,  382,  1249,  1312,  1379,  1791 

Ilargravc'rt  Law  Tracts,  ......     2105 

Harris's  I'Icailing  and  Practice,  by  Evans,  .  .  .  2001 

Holland,  lU'gulations  of  the  States  General,  1630,        .  .  .      830 

Holt  on  Shij.ping,     .......  1357 

Hubcri  Pratilect.  ad  Pandect,    .  .  .  .  .  .     1318 

Hughes  on  Insurance,     537,  1275,  1303,  1318,  1333,  1339,  1392,  2014,  2018, 

2021,  2040,  2042,  2151 
Jacobscn's  Sea  Laws  .....      265,  1057,  1312 

Journal  of  Congress,       .......      826 

Jurist,  American,     .......  1434 

Kent's  Commentaries,       22H,  260,  281,  537,  731,  791,  907,  1007,  1030,  1061, 

1096,  1097,  1106,  1111,  1304,  1462,  1719 
Koningsbcrg,  Ordinance  of,  ....  1285,1379 

Kuricke,  Jus.  Mar.  Hans.,  ....  364,1095,1837 


LIST   OF   AUTHORS   AND   TREATISES    CITED.  IXXXV 

Lafond's  Guide  to  Insurers  and  Assured,  Paris,  1837,         .  1047,1779 

Langenbeck's  Annotations,         .  .  .  .  .  .1812 

Le  Guidon  de  la  Mer,        5,  8,  222,  382,  IIGG,  1230,  12G9,  1281,  1310,  1318, 

1G08, IGGO, 183G 
Les  Us  et  Coutumes  de  La  Mcr,    5,  584,  1120,  1318,  1371,  1372,  1394,  1398 
Livermore  on  the  Law  of  Principal  and  Agent,      .  .  .  210G 

Loecenius  de  Jur.  Mar.,  .  .  3,  1095,  1348,  1420,  1820,  1829 

Maccabees,  .  .  .  .  .  .  .  .  270 

Magens,    5,  5,  5,  9,  9,  212,  415,  431,  432,  432,  1104,  1105,  1105,  1106,  1112, 

1129,  1166,  1168,  11G9,  1170,  1203,  12G7,  1267,  1286,  1287, 

1288,  1295,  1313,  1318,  1318,  1324,  1328,  1332,  1334,  1351, 

13G8,  1370,  1375,  1389,  1394,1410,1464,  1784 
Malynes,  ....  1106,  1221,  1318,  1394,  1820 

Marine  Ordinance  of  1681,    5,  13,  173,  173,  232,  352,  969,  1140,  1163,  1169, 

1312,  1318,  1332,  1336,  1379,  1420,  1421,  1430,  1583,  1602, 

1G05,  1666,  1687,  1719,  1736,  1755a 
Marshall  on  Insurance,  13,  125,  139,  147,  523  a,  537,  584,  736,  977,  979, 

1029,  1062,  1166,  1318,  1348,  1422,  1555,  1661,  1687,  1836, 

1837,   1838,  1846,  1931,  2027,  2028 
Marquardus,       ,  .  .  .  .  .  .  .     1348 

Martin's  Compendium,  ......  1796 

Middelberg,  Ordinance  of,         .  .  .  .  .  .      5,  9 

Millar  on  insurance,  .  .  .  983,1183,1397,1547,1764 

Mollov,  .....      918,  983,  1057,  1286,  1318 

Oleron,  Jugemens  de,     345,  1281,  1360,  1372,  1379,  1394,  1398,  1416,  1421, 

1462, 1561 
Ordinances,  Marine,  and  Sea-LaAvs.    See  Amsterdam,  Antwerp,  Bilboa,  Con- 

solato  del  Mare,  Copenhagen,  Droit  Hanseatique,   Florence, 

Genoa,  Le  Guidon,  Hamburg,  Holland,  Koningsberg,  Les  Us 

et  Coutumes,  Marine  Ordinance  of  1681,  Middelburg,  Oleron, 

Prussia,  Rotterdam,  Stockholm,  Wisbuy. 
Park  on  Insurance,  usually  cited  with  Marshall.     See  Marshall.     1062,  1106, 

1422,  1931,  2021 
Parsons  on  Contracts,  ....  1960,1972,1974 

Pecc.  ad  Leg.  Kh.  .......  1318 

Phillips  on  Evidence,  .  .  .        515,2037,2052,2101,2110 

Portalis,    .........     200 

Pothier  on  Insurance,     5,  223,  232,  301,  321,  430,  521,  581,  911,  945,  1089, 

1092,  1094,   1099,  1115,  1120,  1288,  1310,  1313,  1318,  1328, 

1332,  1348,  1402,  1416,  1422,  1462,  1605,  1661,  1687,  1755  a, 

1767,  1836,  1845,  1847b,  2159 
Pothier  on  Charter-parties,         .....     1431,  1602 

Powell  on  Contracts,  ......  143 

Prussia,  Ordinance  of,  .  .  .  .  .  .  .     5,  9 

Puffendorf,  .  .  ,  .  .  .  .  .278 

Rastel's  Ent,      .......  2030 

Report  of  Committee  of  House  of  Com.,      .  .  .  .  146 

Ricard,  ........   1332 

Robinson's  Col.  Mar.,  .  .         '    .  .  199,270,278,1051 

Roccus  de  Assec,         5,  435,  704,  977,  1106,  1168,   1313,  1318,  1318,  1836, 

2159 
RoUe's  Abr.,  .......  2124 

Roscoe  on  Evidence,      ....  2097,2101,2110,2124 

Rotterdam,  Ordinance  of    .  .  .  .  .  -9,  1318 

Sea-Laws.     See  Ordinances. 

Starkie  on  Evidence,       133,  2047,  2097,  2101,  2103,  2105,  2106,  2110,  2112 

Smith's  Leading  Cases,  .  •  .  .  .  .2112 

Statutes  of  the  United  States,  concerning  Consulting  the  Crew,  1279 

VOL.    I.  A 


IXXXVI  LIST   OF   AUTHORS   AND   TREATISES   CITED. 

Statutes  of  tlie  United  States  concerning  Evidence,     2048,  2062,  2091,  2110 

"        Passports,     .  .  .805 

"         Proceedings,      .  .  .85 

"         Kegistry of  Vessels,     264,265,289, 

2124 

of  Massachusetts,  limiting  the  Liability  of  Ship-owners,       1057,  2006 

of  New  York,  concerning  Set-off,     ....  903 

British,  concerning  Composition  "with  an  Enemy  .  .     1336 

«         Liability  of  Ship-owners,      .  1057,2006 

"         The  amount  of  interest  in  India  Voyages,    307 
"         Insurance  of  Lives,        .  .  .     1247 

"         Insuring  the  price  of  Public  Stocks,  209 

"         Time  Policies,    .....       949 

"         The  Registry  of  Vessels,      .  .  264 

"         Salvage,  .  .  .  .1717 

"         Pilots,  .  .  .  .2007 

«         The  Export  of  Wool,     .  .  .     1846 

"        Insuring  a  Public  Enemy,  .  .  140 

"         Gaming  Policies,  .  .  .   5,  211 

"         The  Form  of  Policies,  .      9,13,382,2011 

"         Insuring  on  Births  and  Christenings,  209 

"         Insuring  on  the  Slave  Trade,         .       209,  210 

"         Cargoes  of  Timber,       .  .  .      1282 

Stevens  on  Average,     1091,  1104,  1105,  1105,  1203.  1232,  1238,  1285,  1288, 

1296,   1297,   1299,  1313,   1315,  1316,1318,1333,1379,1379, 

1385,  1386,  1389,   1394,   1422,   1431,  1462,  1465,  1466,  1480, 

1718,  1756, 1761, 1780,  1785,  1791 

Stockholm,  Ordinance  of,  .  .  .  .  .       5,  9,  1379 

Story,  Conflict  of  Laws,        .....  2104,2109 

"      Equity  Jurisprudence,      .  .  .  .  .  53,  71 

"      On  Agency,  .....  1848,  1867 

«      On  Bailments,       .......    1884 

"      See  Abbott. 

"      Commentaries  on  the  Constitution,    .  .  •  .  218 

"      On  Sales,  ...... 

Straccha,     .......  1100,1847  b 

Targa,    . 1094,  1115 

Tomlin's  Law  Dictionary,  ......  1960 

Treaty  of  United  States  with  France,  1778,     ....        813 

Valin,  3,  5,  147,  149,  272,  276,  583,  908,  1090,  1092,  1095,  1105,  1115, 1116, 
1129,  1138,  1170,  1223,  1241,  1248,  1267,  1282,  1289,  1312, 
1313,  1318,  1318,  1332,  1354,  1370,  1390,  1394,  1398,  1420, 
1420,  1430,  1484  a,  1557,  1581,  1602,  1605,  1660,  1661,  1705, 
1726,  1736,  1737,  1743,  1845 
Vattel,  .....  166,  228,  270,  272,  326 

Verver  Adrian,     .  .  .  .  .  .  .  1332 

Viner's  Abridgment,  ......       1416 

Vivian,       ........  2018 

Voct  ad  Paml,  ..'...•  1313,1318 

Wait,  Am.  State  Papers,  .....        278,  816 

AVatson  on  Partnership,  .  .  .  .  .  .1852 

Weskctt,     3,  147,  211,  212,  415,  438,  438,  453,  483,  1095,  1106,  1148,  1166, 
1183,  1203,  1221,  1222,  1232,  1235,  1269,  1296,  1297,  1312, 
1332,  1372,  1397 
Wheaton,  Ai>[)endix  to  Kcp.  Vol.  2,  .  .  .  .  153 

"         Jiitornatif)nal  Law,     .  .  .  .  .  .281 

Wisbuy,  Ordinance  uf,    .     .     .    1322,  1360,  1379,  1416,  1421 
Wcytscn,  Q.,   .     .    1286,  1288,  1318,  1351,  1371,  1372,  1379,  1397 


TREATISE 


LAW   OF   INSURANCE 


TREATISE 


LAW    OF    INSURANCE. 


CHAPTER    I. 


or  THE   CONTRACT   OF  INSURANCE. 


Sect.  1.  Insurance  definprl  ntifl  cxplninfid. 

2.  The  form  of  the  contract. 

3.  An  agreement  for  insurance. 

4.  The  execution  of  the  contract. 

5.  The  provisions  of  a  commercial 

policy. 

6.  The    provisions    of   a  fire    pol- 

icy. 

7.  The    provisions   of  a   life    pol- 

icy. 


Sect.  8.  What   is    comprehenrled    by   the 
policy  as  a  part  of  it. 
9.  Renewal  of  the  contract. 

10.  Assignment  of  the  policy. 

11.  Alteration  and  cancelling  of  the 

policy. 

12.  The  judicial  con-ection  of  mis- 

takes. 

13.  Leading  principles  of  construc- 

tion.   Usage. 


SECTION    I.        INSURANCE    DEFINED    AND    EXPLAINED. 

1.  Ijv^ur^jvce  is  a  contract  whereby,  for  a  stipulated  considera- 
tion, one  party  undertakes  to  indemnify  the  other  against  damage 
or  loss  on  a  certain  subject  by  certain  pi^rils.^ 

Marine  insurance  is  a  contract  whereby,  for  a  consideration 
stipulated  to  be  paid  by  one  interested  in  a  ship,  freight,  or  cargo 

1  Mr.  Duer,  Mar.  Insurance,  Vol.  I.  an  insurance  without  any  limitation  of 
p.  49,  considers  the  amount  insured  the  amount.     Other  contracts  of  in- 
to be  an  essential  part  of  the  contract ;  demnlty  are  frequently  made  without 
but  I  do  not  see  any  thing  to  prevent  such  a  limitation. 
VOL.    I.                                      1 


2  OF  THE  CONTRACT  OF  INSURANCE.       [CHAP.  I. 

subject  to  marine  risks,  another  undertakes  to  indemnify  him 
against  some  or  all  of  those  risks  during  a  certain  period  or  voy- 
age. 

The  other  species  of  insurance  most  in  use  are  those  against 
loss  by  fire  on  land,  and  loss  of  life.^ 

2.  The  party  undertaking  to  make  the  indemnity  is  called 
the  INSURER  or  underwriter  ;  the  party  to  be  indemnified,  the 
ASSURED  or  INSURED.  The  agreed  consideration  is  called  a 
PREMIUM  ;  the  instrument  by  which  the  contract  is  made,  a 
POLICY  ;  the  events  and  causes  of  loss  insured  against,  risks  or 
PERILS  ;  and  the  property  or  rights  of  the  assured,  in  respect  to 
which  he  is  liable  to  loss,  the  subject  or  insurable  interest. 

3.  The  indemnity  intended  in  assurance  is  not  the  putting  of 
the  party  insured  into  as  good  a  condition  as  he  would,  in  fact, 
have  been  in  had  no  loss  happened,  it  means  the  repayment  of  the 
expenses  incurred,  and  the  payment  for  as  much  of  the  insured 
subject  as  is  lost,  at  its  market  value  at  the  commencement  of  the 
risk,  or  its  value  as  agreed  in  the  policy.  Where  such  value 
exceeds  the  real  value  of  the  subject  at  the  time  of  the  loss,  the 
assured  is,  in  fact,  more  than  indemnified  ;  where  it  is  less,  he  is, 
in  fact,  not  fully  indemnified  ;  but  he  is  in  either  case  precisely 
indemnified  according  to  the  principles  and  stipulations  of  the  con- 
tract.2 

This  contract  was  formerly  defined  as  a  maritime,  or  at  most  a 
mercantile  one  ;  ^  but  it  is  now  considered  as  extending  not  only 

1  Mr.  Justice  Lawrence  says :"  The  Lond.,  1789,  Vol.  II.  pp.   102,  202, 

contract  of  insurance  is  applicable  to  A.  D.  1560,  1601. 

protect  men  against  uncertain  events  9  See  remarks  of  Patteson,   J.,    6 

Tvhicli  may  in  any  wise  be  of  disad-  Mann.    G.   &    Scott,   422,   Irving   v. 

vantage  to  them."     5  B.  &  P.  301,  Manning. 

Lucena  v.  Craufurd.    See,  for  sundry  3  So   Emerigon   describes   it  from 

definitions  of  insurance,  Mr.  Sergeant  Le  Guidon,  and  cites  Stypmannus,  c. 

Colcridgct's  argument  in  Paterson  v.  7,  n.  2G2,  as  extending  it  to  property 

Powell,  'J  I>ing.  320.     For  a  history  transported.     So  Loccenius,  De  Jure 

of  Insurance,  see  Bcckmann,  History  IMaritinio,  Lib.  2,  65,  n.  4,  5.     Wes- 

of  Inventions,  &c.,  by  Johnson,  4th  kett,  tit.  Insurance,  2,  confines  it  to  sea 

edit.,  Lond.,  1846,  Vol.  I.  p.  234,  tit.  risks,  and  says,  "he  offers  his  defini- 

Insurance.    Anderson's  Hist,  of  Com.,  tlon  as  more  adequate  and  complete 


SECT.  I.J  INSURANCE   DEFINED   AND   EXPLAINED.  3 

to  indemnity  against  sea-risks,  fire  on  land,  and  death,  but  many 
other  events  are  its  subjects.  It  was  held  by  the  Court  of  Com- 
mon Pleas  in  England,  that  an  agreement,  in  consideration  of 
the  payment  of  40  guineas,  to  pay  £100  "in  case  the  Imperial 
Brazilian  mining  shares  should  be  done  at  or  above  £100  per 
share,  on  or  before  the  31st  of  December,  1829,"  v/as  an  insur- 
ance, and,  as  such,  prohibited  by  statute. ^  Since,  however,  it  is 
most  frequently  entered  into  as  a  mercantile  contract,  and  the 
greater  part  of  the  principles  of  insurance  apply  to  it  as  such,  this 
form  of  contract  is  always  understood  to  be  intended  when  the 
contrary  is  not  expressed. 

4.  As  to  the  essential  part  of  this  contract,  it  does  not  differ 
from  a  bond  of  indemnity,  or  a  guaranty  of  a  debt,  since  the 
obligor  or  guarantor  takes  upon  himself  certain  risks,  to  which  the 
obligee  or  creditor  would  otherwise  be  exposed.  The  only  differ- 
ence is  in  names,  and  the  form  of  the  instrument,  the  consideration 
for  an  insurance  being  always  called  a  premium,  and  the  instru- 
ment containing  the  terms  of  the  contract,  a  policy,  which  is 
usually  made  in  a  form  peculiar  to  this  species  of  contract. 

5.  Insurances  are  usually  described  to  be  of  two  kinds,  namely, 
policies  on  interest,  and  gaming  policies,  in  which  latter  the  per- 
son insured  is  not  required  to  have  any  interest  in  the  thing 
insured,  and  needs  not  to  be  exposed  to  any  risk  against  which 
the  policy  is  intended  to  protect  him.  "  Gaming  policies,"  says 
Lord  Mansfield,  "are  mere  games  of  hazard,  like  the  casting  of  a 
die."  2  They  are  wagers  made  in  the  form  of  policies,  which  in 
other  respects  differ,  no  less  than  other  wagers,  from  the  contract 
of  insurance.  A  wagering  policy  does  not  seem  properly  to 
belong  to  the  subject  of  insurance,^  since  it  is  prohibited  by  posi- 

than  any  lie  bad  met  Tvith,  and  com-  •  14  Geo.  III.  c.  48.    Paterson  v. 

prehending  those  of  all  tlie  esteemed  Powell,  9  Bing.  320. 

authors  who  had  treated  of  it."   Valin,  2  Doug.  470. 

Vol.  II.  p.  26,  defines  marine  insur-  3  Emerigon,  c.  1,  s.  1,  says,  a  wager 

ance  only,  because  the  Ordinance  on  in  the  form  of  insurance  resembles  it 

which  he  commented  related  only  to  only  in  name.     So  Valin,  in  his  dcfi- 

that  species  of  insurance.     See  also  nition  of  marine  insurance.  Vol.  II. 

Boulay  Paty,  Droit  Com.,  tit.  10,  torn.  p.  26,  excludes  a  wagering  policy. 

3,  p.  233,  ed.  1822.  Christian,  on  the  contrary,  says,  that 


OF   THE   CONTRACT    OF   INSURANCE. 


[CIIAP.  I. 


live  law  in  many  countries,  and  is  considered  to  be  illegal,  with- 
out any  express  legislative  provision,  in  others,  and  is  very  little 


"  insurance  is  in  effect  nothing  more 
than  a  Avager,  for  the  underwriter, 
Tvho  insures  at  five  per  cent.,  receives 
five  pounds  to  return  one  hundred, 
upon  the  contingency  of  a  certain 
event,  and  it  is  precisely  the  same  in 
its  consequences  as  if  he  had  betted  a 
■wager  of  ninety-five  pounds  to  five, 
that  the  ship  arrives  safe,  or  that  a 
certain  event  does  not  happen."  2  Bl. 
Com.  459,  n.  It  is  described  by  the 
civilians  to  be  an  aleatory  contract, 
"since  the  consideration  which  one 
party  receives  is  not  the  price  of  a 
thing  which  he  gives,  but  of  a  risk 
■which  he  agrees  to  take  upon  him- 
self." Boulay  Paty's  Emerigon,  c.  1, 
s.  2. 

Where  wagers  in  general  are  en- 
forced as  legal  contracts,  wagers  on 
the  arrival  of  a  ship  are  sometimes 
declared  to  be  unlawful,  as  against 
public  policy  ;  for  a  community,  it  is 
said,  has  a  great  interest  in  its  com- 
merce, and  it  is  wrong  to  permit  any 
one  to  have  an  interest  that  may 
make  him  desire  that  a  ship  should 
be  wrecked,  since  the  cupidity  of 
men  cannot  be  trusted  in  such  a 
case.  Emer.  c.  1,  s.  1.  AVagcrs  of  this 
description  have,  however,  been  allow- 
ed in  some  parts  of  Italy.  Hoc.  de 
Assec.  n.  73 ;  Poth.  par  Estrangin, 
No.  11,  n.  By  the  French  Ordi- 
nance, Ins.  a.  22,  and  Code,  see  Bou- 
lay Paty,  Droit  Com.,  tit.  10,  tom.  3, 
p,  238,  ed.  1822,  wagers  in  the  form 
of  insurance  arc  prohibited  ;  and  long 
ago  the  French  courts  refused  to  take 
cognizance  of  frivolous  wagers  in  the 
form  of  insurance.     Lcs  Us  et  Cout. 


de  la  Mer,  p.  116.  Le  Guidon,  c.  1, 
a.  5.  So  by  the  regulations  of  Am- 
sterdam, a.  13,  2  Mag.  132,  No.  524  ; 
and  those  of  Genoa,  Casa  Regis  Disc. 
7  and  15  ;  of  Stockholm,  a.  2,  s.  7, 
2  Mag.  257,  No.  1029  ;  of  Prussia, 
c.  6,  a.  10,  2  Mag.  189,  No.  780 ;  of 
Middleburg,  a.  2,  2  Mag.  68,  No. 
161. 

Wagering  policies  on  voyages  Avere 
held  to  be  lawful,  and  were  very 
much  in  use,  in  England  before  1746, 
when  they  were  prohibited  by  the 
Stat.  19  Geo.  II.  c.  37,  "because  the 
permitting  of  them  had  been  pro- 
ductive of  many  pernicious  practices, 
whereby  great  numbers  of  ships  with 
their  cargoes  had  been  fraudulently 
lost ;  and  had  encouraged  prohibited 
and  clandestine  trades  to  the  diminu- 
tion of  the  revenue,  and  the  great 
detriment  of  fair  traders;"  and  by 
Stat.  14  Geo.  III.  c.  48,  wagering  poli- 
cies on  deaths  and  other  events  were 
prohibited ;  and  by  Stat.  8  and  9  Vict, 
c.  109,  s.  18,  all  wagering  contracts 
are  declared  void.  In  Massachusetts, 
wagering  policies  are  considered  void, 
though  not  prohibited  by  statute. 
Amory  v.  Gilman,  2  Mass.  R.  1.  And 
this  doctrine  seems  to  be  adopted  in 
Pennsylvania.  Adams  v.  Pennsylva- 
nia Ins.  Co.,  1  Rawle,  97.  In  New 
York  they  were  formerly  held  to  be 
legal.  Juhcl  v.  Church,  2  Johns.  Cas. 
333.  Mr.  Chief  Justice  Savage,  how- 
ever, says,  "  it  is  to  be  regretted  that 
wagers  were  ever  allowed  to  be  the 
subject  of  an  action."  Buchanan  v. 
Ocean  Ins.  Co.,  6  Cowen,  318.  And 
by  the  Revised  Statutes  of  that  State, 


SECT.  II.]        THE  FORM  OP  THE  CONTRACT.  5 

used  where  it  is  held  to  be  lawful  ;  and  especially  since  it  is 
distinguished  by  one  essential  circumstance  from  what  is  properly 
an  insurance,  inasmuch  as  insurance  is  universally  considered  to 
be  a  contract  of  indemnity,  which  a  wager  is  not.  The  subject 
of  gaming  policies  will  therefore  be  noticed  only  for  the  purpose 
of  distinguishing  what  policies  belong  to  this  class. 

The  contract  of  insurance,  then,  agrees  in  substance  with  a 
bond  or  any  other  contract  of  indemnity  or  guaranty,  but  differs 
in  form  ;  whereas  it  agrees  with  a  wagering  policy  in  form,  but 
differs  in  its  character,  its  objects,  and  the  rules  by  which  it  is 
interpreted. 

SECTION    II.       THE    FORM    OF    THE    CONTRACT. 

6.  Where  the  subject,  the  relation  of  the  parties,  and  the  object 
of  the  contract,  continue  to  be  the  same,  some  degree  of  uniform- 
ity is  naturally  preserved  in  the  general  form  of  the  contract. 
The  ancient  outline  of  the  policy  has  been  more  nearly  adhered 
to  in  England  than  in  the  United  States.  In  the  latter,  there  is  a 
considerable  variety,  and  new  features  and  modifications  have 
been  introduced  from  time  to  time.  "A  policy  of  insurance  has 
been  considered  as  an  obscure,  incoherent,^  and  a  very  strange 
instrument."  2  But  the  obscurity  and  uncertainty  complained  of 
do  not  probably  arise  altogether  from  any  imperfection  in  the 
policy  which  can  be  remedied.^  A  contract  embracing  so  many 
interests  and  parties,  and  liable  to  be  affected  by  so  many  events, 

■which  came  into  force  in  1830,  Vol.  I.  are  generally  the  most  informal  in- 

p.  662,  no  action  can  be  maintained  struments   which    are    brought    into 

on  any  wager.     And  see  Howard  v.  courts  of  justice."      5  Cranch,  342. 

Albany  Ins.  Co,  3  Denio,  301.  And  again,  "The  contract  of  insur- 

1  Per  Buller,  J.,  4  T.  R.  210.  ance  is  very  loosely  drawn."  6  Cranch, 

2  Per  Mansfield,  C.  J.,  4  Taunt.  380.  45.     Lord  Mansfield  said,  "The  in- 

3  Mr.  Justice  Lawrence  says,  "It  strument  is  conceived  in  an  inaccu- 
is  wonderful  that  policies  should  be  rate  form  of  words."  1  Bur.  347.  But 
drawn  with  so  much  laxity."  Mars-  that  "length  of  time  and  a  variety  of 
den  r.  Rcid,  3  East,  579.  Chief  Jus-  decisions  have  reduced  it  to  a  ccr- 
tice  Marshall,  "Policies  of  insurance  tainty."     Doug.  270. 

I  * 


6  OF  THE   CONTRACT   OF   INSURANCE.  [CHAP.  I. 

cannot  but  be  subject  to  some  difficulties  of  construction,  however 
sTcilfuUy  it  may  be  drawn. 

7.  In  the  United  States,  whether  a  policy  be  a  wager  or  not, 
defends  on  the  ivhole  instrument. 

Though  the  assured  have  an  interest  in  the  subject  and  the 
risk,  this  does  not  preclude  his  making  a  wager  respecting  them.^ 
As,  where  a  policy  was,  that  a  ship  should  save  her  passage  to 
China  that  season,  it  was  held  to  be  a  wager,  though  the  insured 
had  some  goods  on  board.-  The  expressions  "interest  or  na  inte- 
rest," or  others  equivalent,  are  commonly  used  in  wagering  poli- 
cies. A  great  variety  of  expressions  might  be  adopted  in  this 
sort  of  policy,  according  to  the  subject,  and  the  event  upon  which 
the  wager  depends.  It  often  happens  in  insurances  intended  to 
be  on  interest,  that  the  assured  has,  in  fact,  no  interest  exposed  to 
the  risks  enumerated  ;  yet  these  are  not  therefore  wagering  poli- 
cies, and  he  is  entitled  to  a  return  of  the  premium.  To  render  a 
policy  a  wager,  it  must  appear  to  be  such  on  its  face.*^ 

Accordingly,  though  the  instrument  contain  phrases  and  provi- 
sions usually  belonging  to  a  wagering  policy,  still,  if  it  appear, 
on  the  ivhole,  to  be  a  contract  of  indemnity,  by  which  the  claims 
of  the  assured  are  to  be  commensurate  with  the  damage  he  may 
sustain,  and  if  it  can  be  executed  as  such,  the  provisions  contained 
in  it,  inconsistent  ivith  the  general  tenor  of  the  instrument,  will  be 
controlled  and  made  void. 

Where  it  was  stipulated  that,  in  case  of  loss,  no  proof  of  inte- 
rest should  be  required,  and  that  there  should  be  no  return  of 
premium,  the  court  decided  that  those  stipulations  were  void,  and 
there  should  be  proof  of  interest,  and  return  of  premium,  as  under 
policies  in  the  usual  form.'^ 

But  where  it  was  agreed  in  a  policy  that  a  total  loss  should  be 
paid  if  the  ship  did  not  return,  and  that  no  |)artial  loss  should  be 

1  Julicl  V.  Cliurcli,  2  Johns.  Cas.  513  ;  Williams  v.  Smith,  2  Caines,  13. 
833.  4  Hemmcnway  v.  Eaton,  13  Mass. 

2  Kent  V.  l>inl,  Cowp.  583.  Sec  Hep.  108.  See  also  Clendining  et  al. 
also  Kulcn  Kemp  v.  Vijjne,  1  T.  11.  v.  Cliureh,  3  Caines,  111  ;  Grant  v. 
805  ;  'J  asker  v.  Seott,  G  Taunt.  231.  Parkinson,  Park,  402 ;  3  B.  &  T.  101  ; 

3  Cousins  V.  Nantes  et  al.,  3  Taunt.  G  T.  K.  483,  n. 


SECT.  IL]         THE  FORM  OF  THE  CONTRACT.  7 

paid,  and  no  benefit  of  salvage  claimed,  and  no  proof  of  interest, 
except  the  policy,  required,  it  was  held  to  be  a  wager  on  the 
return  of  the  ship  ;  for  the  contract  provided  that,  if  it  did  not 
return,  the  whole  sum  insured  should  be  paid,  and  by  the  other 
parts  of  the  policy,  as  well  as  this,  it  appeared  plainly  that  it  was 
not  intended  to  be  a  contract  of  indemnity,  under  which  the  sum 
to  be  paid  by  the  insurer  was  to  be  measured  by  the  damage  sus- 
tained by  the  assured.^ 

By  the  statute  of  19  Geo.  II.  c.  37,  s.  1,  it  is  enacted,  that  no 
insurance  shall  be  made  on  any  ship  or  goods  to  be  taken  on 
board  of  a  ship,  "interest  or  no  interest,  or  without  any  further 
proof  of  interest  than  the  policy,  or  by  way  of  gaming  or  wager- 
ing, or  without  benefit  of  salvage  to  the  insurer."  Before  the 
passing  of  this  act,  gaming  policies  were  resorted  to  for  the  pur- 
pose of  protecting  persons  who  were  carrying  on  illegal  traffic, 
and  were  made  the  means  of  gaining  by  the  wilful  destruction  of 
ships.  Privateers,  and  also  ships  going  to  Spain  and  Portugal, 
and  accordingly  not  being  likely  to  export  wool,  or  import  articles 
that  could  interfere  with  British  nianufiictures,  were  excepted 
from  the  act,  which  shows,  as  Mr.  Chief  Justice  Abbott,  since 
Lord  Tenterden,  remarks,  that  the  object  of  the  act  was  not 
merely  to  prevent  gaming.  It  has  been  held  that  "a  policy  which 
dispenses  with  all  proof  of  interest  is  within  the  act,  and  void," 
and  accordingly,  that  a  policy  in  which  "  the  goods  insured  were 
five  tierces  of  coffee,  valued  at  £27  per  tierce  ;  the  policy  to  be 
deemed  sufficient  proof  of  interest,"  was  void  under  this  act, 
though  it  was  made  bona  fide  for  the  purpose  of  protecting  an 
insurable  interest,  and  was  not  in  any  respect,  except  its  form,  a 
gaming  policy .^ 

Mr.  Justice  Story  considers  that  in  Massachusetts  a  policy  on  a 
substantial  interest,  though  greatly  overvalued,  to  the  amount  of 
from  four  to  ten  or  fifteen  times  its  probable  value  at  the  time  of 
making  the  valuation,  is  not  a  gaming  policy  and  void  as  such,  by 


1  Juhel  r.  Church,  2  Johns.   Cas.     Bing.  567.     But  see  Grant  v.  Parkin- 
333.  son,  Park,  402  ;  Hodgson  v.  Glover, 

2  Murphy  and  another  v.  Bell,  4     6  East,  316. 


8  OF   THE    CONTRACT   OF   INSURANCE.  [CIIAP.  I. 

the  laws  of  that  State,  the  underwriters  not  having  any  intention 
to  underwrite  a  gaming  policy.  The  question  might  be  raised, 
whetlrer  such  a  valuation  was  an  indication  of  unfairness  on  the 
part  of  the  assured,  and  this  would  depend  upon  the  other  circum- 
stances as  well  as  the  valuation.^ 

8.  Cleirac  says,  there  were  formerly  in  use  in  France  unwritten 
contracts  of  insurance,  called  insurances  "in  good  faith," ^  (confi- 
ance),  and  illegal  verbal  insurances  upon  the  slave-trade,  called 
insurances  "upon  honor," ^  were  heretofore  in  use. 

9.  The  French  Code  prescribes  that  the  contract  of  insurance 
shall  be  made  in  writing,  bearing  date  on  the  day  when  it  is  sub- 
scribed, expressing  whether  made  before  or  after  noon,  and  that  it 
shall  contain  other  particulars  specified,  and  that  no  blank  space 
shall  be  left  in  the  instrument.  Divei's  marine  ordinances  and 
statutes  require  that  the  contract  shall  be  in  writing;'*  and  pre- 
scribe more  or  less  particularly  what  it  shall  contain.^ 

We  have  no  such  provision  of  law  in  the  United  States  relating 
specifically  to  insurance. 

The  risk  of  barratry  and  misconduct  of  agents  could  be  insured 
against  only  in  writing,  according  to  the  usual  provisions  of  the 
statute  law  on  the  subject  of  oral  and  written  contracts  ;  but  it 
does  not  appear  U'hy,  under  the  common  law,  a  valid  oral  insur- 
ance may  not  he  made  against  loss  by  fire,  or  the  ordinary  periYs 
of  the  sea,  if  it  were  upon  a  real  interest,  for  a  good  consideration, 
and  made  in  terms  sufficiently  explicit.  ^ 

It  has  been  held   in  England   by  Judges  Eyre,  Ashhurst,  and 

1  Alsop  V.  Commercial  Ins.  Co.,  2  Mag.  128  ;  Prussia,  a.  3,  2  Mag.  189  ; 
1  Sumn.  R.  451.  Hamburg,  2  Mag.  212  ;    Stockholm, 

2  Lc  Guidon,  c.  1,  a.  27.  2  Mag.  407. 

3  Boulay  Paty,  sur.  Emer.,  c.  2,  s.  1.  6  ]\i,..  Duer,  in  liis  learned  and  able 

4  Ord.  of  Florence,  Philip  II.;  Bil-  treatise  on  IVIarine  Ins.,  Vol.  I.  p.  CO, 
boa;  Genoa;  Middleburg;  Rotterdam;  e.xpresscs  the  opinion  that,  under  the 
Amsterdam  ;  Prussia  ;  Hamburg  ;  common  law,  a  vali<l  insurance  may 
Stockliolm  ;  Stat.  .'55  Geo.  III.  c.  (;;>.  be  made  by  words  spoken.     And  see 

5  Code  dc  Com.,  Liv.  2,  tit.  10,  art.  Jeflery  v.  Walton,  1  Stark.  267,  and 
832,  .".33,  337;  (Jenoa,  2  Mag.  05;  Boulay  Paty,  Droit  Com.,  tit.  9  dcs 
Middhburg,  2  Mag.  71,  72;  Jiottcr-  Contrats  a  la  Grossc,  s.  1,  torn.  3,  p.44, 
dam,  2  Mag.  94  ;  Amsterdam,  a.  23,  cd.  1822. 


SECT.  II.]  THE   FORM    OF   THE    CONTRACT.  9 

Wilson,  sitting  as  comnnissioners  in  chancery,  that  an  insurance 
not  in  writing  would  be  void,  as  an  evasion  of  the  stamp  duty.i 
And  the  English  statutes,  requiring  the  assured  in  certain  cases  to 
be  named  in  the  policy,  imply  that  the  contract  is  in  writing.^ 
Mr,  Justice  Tilghman,  of  Pennsylvania,  hesitated  to  say  that  a 
valid  insurance  could  be  made  otherwise  than  in  writing  j-^  and  in 
Louisiana"^  and  Ohio^  the  courts  have  said  distinctly  that  it  must 
be  in  writing  ;  and  it  is  usually  spoken  of  as  being  so. 

There  does  not  seem  to  be  any  reason  for  prescribing  by  law 
the  contents  of  a  policy  of  insurance,  any  more  than  those  of  any 
other  species  of  contract.  Where  a  species  of  contract  is  used  as 
a  cloak  to  gambling  or  cheating,  or  for  any  other  purpose  perni- 
cious to  the  public,  this  may  be  a  reason  for  legislative  interfer- 
ence;  otherwise,  the  common  course  appears  to  be  the  better  one, 
namely,  to  leave  parties  to  make  such  stipulations,  and  in  such 
terms,  as  they  may  choose. 

10.  A  policy  being  forfeited  by  a  violation  of  some  of  its  con- 
ditions, a  mere  oral  waiver  of  the  forfeiture  is  not  sujfficient  to 
revive  it,^  unless  some  new  consideration  on  the  part  of  the  assured 
supervenes,  or  some  transaction  takes  place  between  the  parties 
under  the  contract  importing  a  waiver;  such,  for  instance,  as 
would  be  equivalent  to  receiving  rent  from  a  tenant  for  a  time  pos- 
terior to  the  forfeiture  of  a  lease  by  non-payment  of  rent. 

11.  Insurance  is  most  frequently  made  by  an  incorporated 
company  ;  and  "such  a  company  is  the  mere  creature  of  the  act 
to  which  it  owes  its  existence,  and  may  be  said  to  be  precisely 
what  the  incorporating  act  has  made  it,  to  derive  all  its  powers 
from  that  act,  and  to  be  capable  of  exerting  its  faculties  only  in 
the  manner  which  that  act  authorizes."  ''  It  is  not  only  necessary 
that  the  corporation  should  be  authorized  to  underwrite  policies  ; 


1  Morgan  r.  Mather,  2  Vcs.jun.  18.  5  Cockerill  v.  Cincinnati  Ins.  Co., 

2  25  Geo.  m.  c.  44  ;  28  Geo.  III.  16  Ohio  E.  149. 
c.  56.  6  Ibid. 

3  Smith  V.  Odlin,  4  Yeates,  468.  '  Head  and  Amory  v.  Prov.  Ins. 

4  Waldcn    V.   Louisiana  Ins.    Co.,  Co.,  2  Cranch,  167  ;  and  see  Walden 
12  La.  R.  135.  v.  Louisiana  Ins.  Co.,  12  La.  R.  135. 


10  OF   THE    CONTRACT   OF   INSURANCE.  [CHAP.  I. 

the  contract  must  also  he  made  in  a  form  to  hind  the  company.'^ 
The  old  doctrine,  however,  that  a  corporation  must  contract  under 
seal,  no  longer  prevails  ;  a  corporation,  as  well  as  an  individual, 
may,  unless  its  charter  restrains  its  power  in  this  respect,  without 
seal,  authorize  an  agent  to  bind  it.  But  a  corporation  is  distin- 
guished from  an  individual  contractor  in  one  respect ;  being  usually 
an  aggregate  body,  as  insurance  companies  commonly  are,  it  can 
bind  itself,  and,  indeed,  act  in  any  respect,  only  by  its  agents. 
In  contracting  with  such  a  body,  therefore,  it  is  necessary,  not 
only  to  see  that  the  contract  is  one  within  its  authority  to  make, 
and  that  the  person  acting  as  the  agent  of  the  company  is  author- 
ized to  bind  it,  but  also  that  the  contract  is  in  a  form  by  which 
the  company,  according  to  its  constitution,  may  be  bound. 

12.  Different  forms  of  'policy  are  used  hy  some  companies  for 
ship,  freight,  and  cargo?  The  same  form  seems  to  he  more 
generally  used,  for  the  reason,  probably,  that  two  or  more  of  the 
interests  in  marine  insurance,  namely,  ship,  freight,  cargo,  and 
profits,  are  frequently  insured  at  the  same  time  between  the  same 
parties,  and  the  transaction  is  simplified  by  combining  them  in  the 
same  instrument.  Accordingly,  the  common  forms  of  such  poli- 
cies contain  some  stipulations  applicable  only  to  the  ship,  others 
to  the  freight,  or  cargo  ;  and  others  applicable  to  all  these  sub- 
jects, as  well  as  to  an  interest  in  bottomry,  respondentia,  and 
commissions. 

SECTJON    III.       AN    AGREEMENT    FOR    INSURANCE. 

13.  It  is  often  desirable  to  conclude  an  agreement  for  insurance 


immediately,  lest  some  intelligence  should  induce  one  of  the  parties 
to  recede.     Accordingly,  it  is  the  practice  ivith  private  English 

1  Utica  Ins.  Co.  v.  Kip,  8  Cowen,  on    Corporations,  c.   7  ;    Fletcher   v. 

20  ;   North   River  Ins.  Co.  v.  Law-  United  States  Bank,  8  Wheat.  338 ; 

rcnce,  3  Wend.  482 ;  Beach  v.  Ful-  Stone  v.  Wood,  7  Cowen,  453  ;  Per- 

ton  Bank,  3  Wend.  283  ;  New  York  kins  v.  Washington  Ins.  Co.,  6  Johns. 

Firemen  Ins.  Co.  v.  Sturges,  2  Cowen,  Ch.  11.  485. 

6C4  ;  New  York  Firemen  Ins.  Co.  v.  2  in  New  York,  1  Ducr,  Mar.  Ins. 

Ely,  2  Cowen,  0  78  ;  Angcll  and  Ames  G4. 


SECT.  III.] 


AN   AGREEMENT   FOR   INSURANCE. 


11 


insurers,  on  agreeing  upon  a  risk,  to  subscribe  a  "  slip,^'  or  short 
memorandum  of  the  proposed  insurance,^  whicli,  according  to  the 
statement  of  one  of  a  special  jury,  and  so  probably  a  man  practi- 
cally acquainted  with  the  course  of  business,  is  considered  to  be 
binding  on  the  parties  ;  but  Lord  Kenyon  held  that  it  was  not 
legally  binding  for  want  of  a  stamp,"  and  Lord  Ellenborough  gave, 
in  effect  the  same  opinion.^ 

The  reason  here  given  why  this  slip,  signed  by  the  insurer,  is 
not  a  valid  agreement  in  England,  shows  that  it  would  be  so  in 
the  United  States,  while  we  have  no  stamp-act,  if  it  contain  the 
terms  of  the  contract  sufficiently  expressed.  The  usual  practice 
is  to  enter  the  agreement  on  the  books  of  the  insurance  company, 
subscribed  by  some  officer  authorized  to  bind  the  company.  Such 
a  memorandum  is  binding  upon  the  company  as  an  agreement  to 
make  a  policy,  if  the  premium  is  paid  by  the  applicant  in  due 
time.'' 

14.  A  party  is  not  legally  bound  to  the  full  extent  of  all  the 
ordinary  risJcs,  by  an  agreement  to  make  a  policy,  the  same  being 


1  Marsh.  Ins.  286,  n. 

2  Rogers  V.  McCarthy,  Park,  45,  n. 

3  Marsden  v.  Read,  3  East,  572. 
By  the  Stat.  35  Geo.  III.  c.  37,  and 
63,  an  unstamped  agreement  to  in- 
sure is  not  available  as  a  contract. 
Stat.  54  Geo.  III.  c.  1-44,  provides  for 
stamping  it.  Lord  Denman  remarks 
of  such  an  unstamped  agreement,  on 
■which  the  premium  had  been  paid, 
that  "  a  court  of  equity  would  have 
compelled  the  insurer  to  execute  a 
policy,"  (Mead  v.  Davidson,  3  Adolp. 
&  Ellis,  303,)  on  the  ground,  as  Mr. 
Duer  supposes,  that  the  agreement 
had  been  partly  executed.  1  Mar.  Ins. 
131. 

4  The  president  of  an  insurance 
company  in  Providence,  giving  his 
testimony  said,  "In  effecting  or  set- 
tling a  policy,  the  assent  of  the  par- 


ties to  doing  a  thing  is  in  all  respects 
as  binding  as  the  thing  done,  accord- 
ing to  the  usage  and  practice  among 
underwriters."  2  Cranch,  164.  And 
the  practice  and  understanding  of 
insurers  generally  are  according  to 
this  statement. 

At  Marseilles,  instead  of  a  slip  sign- 
ed by  the  insurer,  Emerigon  says  that 
the  broker  made  out  an  abstract  of 
the  risk  and  terms,  and  the  under- 
writer subscribed  to  the  policy  in 
blank,  leaving  it  to  be  filled  up  by 
the  broker  according  to  the  abstract. 
Emer.  c.  2,  s.  4.  Signing  policies  in 
blank  is  contrary  to  the  French  Ordi- 
nance, and  is  disapproved  of  by  Eme- 
rigon as  exposing  insurers  to  frauds, 
since  they  often  found  that  the  policy 
did  not  correspond  to  the  broker's 
note. 


12  OF    THE    CONTRACT    OF    INSURANCE.  [CIIAP.  I. 

executory  on  both  sides,  without  some  memorandum  signed  hy  him 
to  that  effect} 

Insurance  against  some  of  the  usual  rjsks,  whether  in  a  marine, 
or  fire  policy,  being  required  by  the  ordinary  statutory  provisions 
to  be  in  writing,  a  merely  executory  oral  agreement  for  a  policy 
against  those  risks,  so  long  as  nothing  is  done  on  either  side  to- 
wards executing  it,  will  not  be  binding.  But  where  the  premium 
has  been  paid,  and  the  oral  agreement  has  been  in  all  respects 
executed  by  the  party  applying  for  the  insurance,  the  transactions 
between  the  parties  will  be  likely  to  amount  to  conclusive  evi- 
dence, by  admission  of  the  underwriters,  that  they  have  executed 
and  constructively  delivered  a  policy  containing  the  usual  provi- 
sions, and  that  the  same  is  in  their  office  subject  to  the  order  of 
the  assured,  precluding  any  proof  to  the  contrary  on  their  part. 
This  construction  is  favored  by  the  frequent  practice  in  the  ordi- 
nary course  of  business,  for  assureds  not  to  call  for  their  policies 
at  the  office  of  the  underwriters  until  some  time  after  the  same 
are  made  out,  and  it  is  not  to  be  presumed  that  underwriters  are 
at  liberty,  during  all  this  time,  to  repudiate  the  contract ;  and  if 
they  have  not  this  privilege,  it  is  on  the  ground  of  a  constructive 
delivery,  by  the  policy  being  in  the  hands  of  the  clerk,  subject  to 
the  order  of  the  assured.  The  company  may  therefore  be  well 
estopped  from  exonerating  themselves  by  alleging  their  own 
neglect  to  make  out  the  policy. 

Some  adjudications  on  other  contracts  tlian  insurance  give  some 
countenance  to  the  doctrine,  that  where  the  proposed  assured  has 
paid  the  premium,  and  fully  performed  the  agreement  on  iiis  part, 

1  Some  insurance  companies  keep  of  both  are  requisite,  the  promise  of 
a  blank  form  of  a  memoraiRlum  of  each  being  the  consideration  for  that 
an  agreement  for  insurance,  to  be  of  the  other ;  but  when  the  premium 
filled  up  and  signed  by  both  parties,  is  acknowledged  to  have  been  paid, 
1  Duer,  Mar.  Ins.  107.  The  agree-  the  signing  of  a  policy  or  an  agree- 
ment is  signed  by  botli  parties,  since  ment  for  one,  by  the  underwriter, 
the  j)rcmium  is  usually  not  paid,  or  constitutes  a  valid  contract.  See 
the  promissory  note  given  for  it,  until  Boulay  Paty,  Droit  Com.,  tit.  10,  s.  1, 
the  policy  is  filled  up.  So  long  as  tom.  3,  p.  253,  ed.  1822.  Hamilton 
the  contract  consists  of  the  mutual  v.  Lycoming,  Mut.  Ins.  Co.,  5  Pcnn. 
promises  of  the  parties,  the  signatures  11.  (by  Barr,)  339. 


SECT.  III.]  AN   AGREEMENT   FOR  INSURANCE.  13 

the  underwriter  is  bound  by  his  oral  promise  to  insure. ^  Other 
decisions  of  ])reponderating  authority  bear  strongly  against  the 
doctrine,  in  reference  to  risks  corning  within  the  usual  provisions 
of  statutes  of  frauds.^  If  the  underwriter  is  held  not  to  be  bound 
by  his  oral  agreement  so  made  and  executed  on  the  part  of  the 
proposed  assured,  the  particular  circumstances  would  be  likely  to 
be  such  as  to  render  him  liable  in  an  action  on  the  case. 

\5.  A  memorandum  that  a  subject  "is  insiu-ed,''  or  ''shall 
stand  insured,^'  means  that  it  is  insured,  or  shall  he  so,  according 
to  the  ordinary  form  of  policy  used  in  the  ojjice  where  the  memo- 
randum is  made. 

Negotiations  being  had  concerning  an  insurance  upon  wheat, 
the  secretary  of  the  insurance  company  wrote  to  the  applicant, 
that  the  company  did  not  understand  how  he  made  the  value  so 
much  as  he  proposed  to  get  insured,  saying,  "The  market  price 
and  five  per  cent,  is  the  rule,"  and  that  he  might  call  the  next 
Monday  on  the  subject,  and  that,  in  the  mean  time,  "it  might 
stand  insured  until  Monday  ;"  before  which  day  a  loss  occurred. 
This  was  held  in  Ohio  to  be  an  insurance."'  This  supposes  the 
secretary  to  have  authority  to  bind  the  company  in  such  a  case, 
which  most  usually  he  has  not. 

So  an  application  for  reinsurance  on  a  certain  policy,  with  the 
indorsement,  "Taken  at  three  per  cent.,"  duly  signed,  is  an  agree- 
ment to  reinsure  against  the  risks  taken  in  the  original  policy,  and 
may  be  enforced  to  the  same  effect  as  the  policy  might  have  been, 
if  made  out.^ 

16.  The  agreement  for  an  insurance,  like  other  contracts,  rer 
quires  the  mutual  assent  of  the  parties,  and  remains  in  force,  and 
is  not  discharged,  until  such  a  policy  as  is  agreed  for  is  made  out, 
or  the  claim  for  it  is  waived. 

A  fire  company  having  agreed  by  indorsement  on  a  certificate 

1  Hoby  V.  Roebuck,  7  Taunt.  157 ;  temere  v.  Hayes,  5  B.  &  Ad.  456,  per 
S.  C.  2.  Marsh.  433 ;  Mavor  v.  Pyne,     Parke,  B. 

2  C.  &  P.  91 ;  S.  C.  3  Bing.  285  ;  Do-  3  Neville  v.  M.  M.  Ins.  Co.  of  Cin- 

nellan  v.  Read,  3  B.  &  Ad.  906.  cinnati,  17  Ohio  R.  192. 

2  Teal  V.  Auty,  2  B.  &  B.  100 ;  4  Woodruflf  v.  Columbus  Ins.  Co., 
GritBths  V.  Young,  12  East,  513 ;  Bet-  La.  An.  R.  697. 

VOL.   I.  2 


;[4  OF   THE    CONTRACT    OP   INSURANCE.  [CIIAP.  I. 

in  which  the  application  was  recited,  to  issue  a  policy  upon  a  build- 
ino-,  provided  the  applicant  should  make  a  certain  alteration  in  it, 
and  procure  a  ratification  of  the  insurance  by  the  trustees  of  the 
building,  the  applicant  thereupon  made  the  alteration,  procured 
the  consent  of  the  trustees,  and  paid  a  part  of  the  premium  to  the 
a^ent  of  the  company,  and  gave  his  premium-note  for  the  remain- 
der. The  agent  promised  to  inspect  the  alteration,  and  examine 
the  document  whereby  the  trustees  had  given  their  consent,  but, 
though  frequently  requested  by  the  applicant,  he  neglected  so  to 
do  for  more  than  a  year,  when  the  building  was  burnt.  Gibson, 
C.  J.,  and  his  associates  of  the  Supreme  Court  of  Pennsylvania, 
held  this  be  a  valid  agreement.^ 

An  insurance  company  may  agree  for  a  policy  by  its  agent  as 
well  as  by  its  ofEcers.  An  agent  of  a  fire  company  who  was 
authorized  to  make  surveys  of  buildings,  and  agree  for,  but  not  to 
make  out  and  sign  policies,  agreed  with  an  applicant  for  a  policy 
of  a  certain  amount  on  a  certain  building  for  a  certain  period,  and 
received  the  premium,  and  while  the  application  and  premium- 
note,  having  been  despatched  by  mail  by  the  agent,  were  on  the 
way,  and  the  officers  of  the  company  had  as  yet  no  notice  of  the 
application,  the  building  was  burnt.  The  company  were  held  in 
Ohio  to  be  liable  for  the  loss,  though  in  the  blank  printed  form 
which  was  filled  up  to  make  the  application,  it  was  stated  that  a 
policy  would  be  issued  if  the  application  should  be  approved  by 
the  company  ;"^  their  refusal  to  make  out  the  policy,  not  being 
on  the  ground  that  the  risk  was  objectionable,  at  the  time  of  the 
application  being  accepted  by  the  agent. 

A  policy  was  agreed  for,  and  one  made  out  differing  from  the 
agreement,  and  delivered  to  the  clerk  of  the  party  proposed  to  be 
insured,  who  did  not  see  it,  and  was  not  apprised  of  the  variation 
until  a  loss  had  happened,  and  did  no  act  accepting  the  policy  as 
made  out.  It  was  held  that  the  agreement  remained  in  force,  and 
that  the  applicant  was  entitled  to  such  a  policy  as  was  agreed  for.*' 


1  Hamilton  r.  Lycoming  Mut.  Ins.         2  Palm  v.  Medina  Fire  Ins.  Co.,  20 
Co.,  5  Pcnn.  (liarr's)  Hop.  .IS!).  Ohio  Rep.  529. 

3  Franklin  Ins.  Co.  r.  Hewitt,  3  B.  Muuroc's  (Ky.)  R.  239. 


SECT.  III.]  AX   AGREEMENT   FOR   INSURANCE.  15 

17.  The  question  has  arisen  as  to  ivhat  iviJl  amount  to  the  con- 
summation of  an  agreement  for  insurance  between  parlies  in 
dijfercnt  places  communicating  by  letter  or  message. 

The  doctrine  must  be  the  same,  whether  the  inquiry  relates  to 
a  contract  of  insurance  or  sale,  or  any  other  agreement  not  the 
subject  of  specific  regulation  in  this  respect.  The  question  is, 
what  is  such  an  acceptance  of  an  offer,  as  will  bind  the  party 
accepting  and  the  party  offering  ;  and  what,  if  any,  right  of  revo- 
cation of  his  ofl'er  or  acceptance  either  party  has,  and  within  what 
time,  and  in  what  manner,  he  must  avail  himself  of  such  right. 

In  case  of  inquiry  made  of  insurers  by  letter,  for  the  terms  on 
which  they  would  insure  the  vessel  of  the  writer,  for  a  specified 
voyage,  they  immediately  answered  by  mail,  naming  the  premium, 
but  on  the  next  day,  having  thought  better  of  the  matter,  they 
wrote  by  mail  revoking  their  offer  and  declining  the  risk.  On  the 
following  day  the  applicant  received  their  first  letter,  and  on  the 
same  day  replied,  accepting  the  terms,  and  requesting  them  to  fill 
up  a  policy  for  $'2,500  or  $'3,000.  After  despatching  this  letter, 
he  received  their  second  letter,  revoking  their  offer.  The  court  in 
Massachusetts,  held  that  the  contract  was  not  consummated,  and 
that  the  insurers  were  not  bound,i  that  is  to  say,  that  the  party 
making  the  offer  may  revoke  it  if  he  takes  the  proper  steps  to  give 
notice  of  his  revocation  at  any  time  before  receiving  notice  of  its 
acceptance  by  the  other  party. 

In  a  case  in  the  Court  of  King's  Bench  in  England,^  not  pre- 
cisely similar  to  the  preceding  one,  but  very  closely  analogous,  it 
was,  on  the  contrary,  held  that  the  party  making  the  offer  will  be 
bound,  if  the  party  to  whom  it  is  made  duly  communicates  notice 
of  his  acceptance.  Lindsell,  by  letter,  offered  a  lot  of  wool  to 
Adams,  saying  he  expected  an  answer  by  the  course  of  post ;  but, 
through  mistake  in  directing  the  letter,  it  was  delayed.  Lindsell, 
after  not  receiving  an  answer  when  he  should  have  received 
one  if  his  own  letter  had  been  transmitted  as  he  supposed,  and 
answered  by  course  of  mail,  sold  the  wool  to  another,  after  which 

iM'Cullocht'.  Eagle  Ins.  Co.,  1  Pick.  2  Adams  v.  Lindsell,  1  B.  &  A. 
278.  681. 


16  OP   THE    CONTRACT    OF   INSURANCE.  [CIIAP.  I. 

Adams's  letter  was  received  by  him,  accepting  his  offer,  and 
despatched  in  course  of  post  after  receipt  of  Lindsell's.  The 
court  considered  that  Lindsell  was  bound  by  his  offer  to  the  same 
effect  as  if  his  letter  had  gone  direct,  its  delay  being  through  his 
fault,  and  that  it  was  a  standing  continuing  offer  up  to  the  time  of 
his  letter  being  received  by  Adams,  and  thus  held  him  to  be* 
answerable  for  a  breach  of  his  contract. 

The  circumstance  in  which  these  two  cases  differ  is,  that,  in 
the  IMassachusetts  case,  the  company  immediately  despatched 
notice  of  their  revocation  to  the  other  party  ;  in  the  English  case, 
Lindsell,  though  by  the  sale  of  the  wool  he  showed  distinctly  that 
he  intended  to  retract  his  offer,  gave  no  such  notice.  Though 
the  court  do  not  expressly  put  stress  upon  this  circumstance,  yet 
we  cannot  say  that  such  notice  would  have  had  no  weight  with 
them. 

In  a  subsequent  case,^  in  the  English  Court  of  Common  Pleas, 
Mr.  Chief  Justice  Best  questioned  the  correctness  of  the  decision 
in  the  Court  of  King's  Bench  ;  and  in  a  subsequent  case  in  Mas- 
sachusetts, Mr.  Chief  Justice  Shaw,  giving  the  cpinicn  of  the 
court,-  collaterally  stated  a  proposition,  that  has  been  construed 
by  a  learned  and  able  jurist^  to  import  a  renunciation  of  the  doc- 
trine previously  adopted  in  that  State.  He  said  that,  "when 
notice  is  to  be  given  by  mail,  a  notice  actually  put  into  the  mail, 
especially  if  forwarded  and  beyond  the  control  or  revocation  of 
the  party  sending  it,  may  be  good  notice." 

The  point  specifically  decided  was,  that  the  acceptance  of  the 
offer  had  not  been  despatched  at  the  time  of  the  fire,  but  remained 
in  the  hands  of  the  applicant's  agent,  and  subject  to  the  appli- 
cant's control  when  the  fire  happened,  and  so,  under  the  ordinary 
rule  in  such  case,  the  policy  would  not  have  been  binding  upon 
the  insurance  company,  if,  without  having  had  notice  of  the  loss, 
they  had  issued  one.  The  remark  of  the  chief  justice,  however, 
considering  the  facts  to  which  it  had  reference,  certainly  indicates 


I  lloullcdgc  V.  Grant,  3  Car.  &  P.         "  Thayer  v.  Middlesex  Mut.  Fire 
2G7  ;  S.  C,  4  Bing.  C53.  Ins.  Co.,  10  Pick.  326. 

3  1  Ducr  Mar.  Ins.  121. 


SECT.  III.]  AN   AGREEMENT   FOR   INSURANCE.  17 

a  different  doctrine  from  that  of  the  previous  case  in  the  same 
court,  though  consisting  in  part  of  different  judges. i 

The  case  of  a  contract  for  insurance  evidently  differs  from 
notices  on  bills  and  the  like,  and  would  be  subject  to  a  new  and 
embarrassing  question,  where  there  should  be  a  telegraphic  com- 
munication. 

This  same  question  has  come  up  in  a  New  York  case  relative 
to  a  contract  of  sale.-  Frith,  December  24th,  offered  by  letter  a 
quantity  of  brandy  to  Mactier  the  intestate,  upon  specified  terms, 
who,  March  25th,  despatched  a  letter  accepting  the  offer,  and 
died  on  the  10th  of  April,  before  his  letter  had  come  to  the  hands 
of  Frith.  The  question  was,  whether  the  contract  was  consum- 
mated on  Mactier's  despatching  his  acceptance,  or  his  acceptance 
remained  revocable  until  it  should  be  received,  for  if  it  did  so,  it 
was  revoked  by  his  death.  Mr.  Justice  Marcy  gave  a  learned 
and  elaborate  opinion  in  the  Court  of  Errors,  that  the  contract 
was  consummated,  and  bound  Frith  from  the  time  of  Mactier's 
despatching  his  letter  of  acceptance  ;  and  a  majority  of  the  court, 
a  part  of  whom  only  were  jurists,  concurred  in  this  opinion."^ 

In  a  case  before  the  Supreme  Court  of  the  United  States,  the 
agent  in  Fredericksburg,  Virginia,  of  a  Baltimore  fire  insurance 
company,  in  reply  to  an  application  for  a  policy,  had  by  instruc- 

1  In  respect  to  the  doctrine,  that  a  other  had   accepted,   and    thus    the 

party  may  retract   any  time   before  negotiation  might  continue  and  never 

receiving  notice  of  the  other's  assent,  come  to  any  result.     Adams  v.  Lind- 

the  English  Court  of  King's  Bench  sell,  1  B.  &  Aid.  681.     This  reason 

objects   that,  if   the    insurer  is  not  is  adopted  by  Gibson,  C.  J.,  of  the 

bound  by  his  offer  until  he  has  re-  Supreme    Court    of    Pennsylvania  ; 

ceived  notice  of  its  acceptance,  but  Hamilton  v.  Lycoming  Mut.  Ins.  Co., 

in   the   interval  may  retract  it,  the  5  Penn.  R.  by  Barr,  339,  at  p.  342  ; 

applicant  cannot  be   bound  by  his  and  by  Judge  Duer,  1  Mar.  Ins.  68. 

acceptance  until  he  has  received  no-  This  is  merely  supposing  a  very  im- 

tice  that  it  has  been  assented  to  by  the  probable  contingency,  which,  admit- 

insurer ;  nor,  again,  the  insurer  until  ting  that  it  might  happen,  does  not 

he  has  received  notice  that  his  assent  seem  to  be  a  conclusive  objection, 

to  the  acceptance  has  been  assented  ^  Mactier's  Administrators  v.  Frith, 

to  by  the  applicant,  and  so  the  par-  6  Wend.  104, 

ties  might  go  on  corresponding  inde-  3  See  also  Brisban  v.  Boyd,  4  Paige, 

finitelv,   each  retracting  before  the  20. 
2* 


18  OF   THE   CONTRACT   OF   INSURANCE.  [CHAP.  I. 

tion  from  his  company,  on  the  2d  of  December,  stated  the  terms 
on  which  they  would  make  a  policy,  by  letter  addressed  to  the 
applicant  ;  and  the  applicant,  then  in  Alabama,  on  the  21st  of 
that  month,  the  day  after  receiving  the  agent's  letter,  put  his  letter 
of  acceptance  of  their  terms,  inclosing  a  check  for  the  premium, 
into  the  post-office,  addressed  to  the  agent.  On  the  next  day, 
namely,  the  22d  of  the  same  month,  the  dwelling-house  in  Frede- 
ricksburg, on  which  the  insurance  was  proposed,  was  burnt.  The 
agent  received  the  letter  of  acceptance,  inclosing  the  check  for  the 
premium,  on  the  31st,  and  immediately  replied,  declining,  on 
behalf  of  the  company,  to  take  the  risk.  In  a  bill  in  equity  for 
relief  upon  this  correspondence,  as  an  agreement  to  make  a  policy, 
it  was  decided  that,  on  the  letter  of  the  applicant  being  put  into 
the  mail  in  Alabama,  the  agreement  for  the  insurance  was  com- 
pleted, subject  to  the  contingency  of  the  applicant's  remanding 
his  letter,  or  giving  notice  of  his  revocation  of  his  acceptance,  so 
as  to  reach  the  agent  before  the  receipt  of  his  letter  of  acceptance 
of  the  terms  offered.^ 

These  cases  sufficiently  show  the  difficulty  and  subtilty  of  this 
question.  Pothier's  doctrine^  is,  that,  if  the  party  to  whom  an 
offer  is  held  out  sustains  damage  by  its  being  revoked,  while  he  is 
reasonably  relying  and  acting  upon  it,  his  remedy  should  be  an 
action  for  the  breach  of  good  faith,  not  one  alleging  the  contract."^ 

His  opinion  accordingly  coincides  with  most  of  the  decisions 
above  cited. 

The  doctrine  decidedly  predominating  in  the  cases,  accordingly, 
is,  that  a  U'riticn  offer  bij  insurcis  of  terms  on  which  they  will 
insure,  where  the  subject,  risks,  and  terms  are  adequately  speci- 

1  Tayloc   v.  Mercli.  Fire  Ins.  Co.,  also  riumpbrics  v.  Carvalho,  16  East, 

9  Howard,  890.     Sec  also  remarks  of  45,  for  remarks  on  Cooke  v.  Oxley, 

Gibson,  C.  J.,  Hamilton  v.  Lycoming  which  is  incorrectly  reported ;   also 

Mut.  Ins.  Co.,  5  Penn.  (Barr's)  11.  Eylcs  v.  Ellis,  4  Bing.  112;  Head  u, 

339,  at  p.  3-12.  I^'ggon,  3  Man.  &  llyl.  97  ;  Dig.  lib. 

3  Traitd  du  Contrat  du  Vent,  s.  2,  17,  tit.  1.  s.  15  ]  and  1  Duer,  Mar.  Ins., 

a.  3,  no.  32.  p.  G7.s.  13,  and  p.  IIG,  n.  ix.,  where 

3  Sec  1  Duer,  Mar.  Ins.,  127-129.  tliis  subject  is  very  learnedly  and  ably 

Also  1  M.  &  8.  95  ;  2  Vcs.  Jr.  118  ;  treated,  to  whom  I  am  indebted  for 

Cooke  V.  Oxley,  3  T.  11.  653.     See  some  of  the  above  references. 


SECT.  III.]  AN   AGREEMENT   FOR  INSURANCE.  19 

fied,  becomes  binding  on  a  despatch  of  an  accepta7ice,  provided  the 
acceptance  reaches  them  prior  to  a  letter  countermanding  it,  and 
in  reasonable  time,  or  within  the  time  prescribed. 

18.  Where  an  applicant  applies  by  mail  for  a  policy  in  certain 
terms,  and  transmits  the  premium-note,  and  the  insurers  fill  up 
and  transmit  by  mail  a  policy  in  different  terms,  saying  they 
accept  his  proposition,  it  is  not  an  agreement,  as  the  minds  of 
the  parties  do  not  concur,  and  the  applicant  is  not  liable  on  his 
note. 

Carrington  applied  to  a  company  for  their  terms  for  a  policy 
"on  horses  and  oxen,  on  board  the  Gleaner,  from  Saybrook  to 
the  West  Indies."  The  company  replied,  "The  office  will  take 
the  risk  at  15  per  cent."  Carrington  replied  by  mail  the  next 
day,  "We  accept  your  terms,  wish  a  policy  filled  on  26  horses, 
valued  at  ^2,200  dollars,  and  on  20  oxen,  valued  at  300  dollars. 
Inclosed  is  a  note  for  the  premium."  The  company  on  the  next 
day  forwarded  by  mail  a  policy  for  "3,000  dollars,  on  stock  on 
the  deck  of  the  brig  Gleaner  ;"  with  this  note  on  the  margin  :  — 
"46  head  of  horses  and  oxen  valued  at  3,000."  Carrington 
refused  to  accept  the  policy,  on  account  of  the  stock  being  valued 
together  at  one  sum,  instead  of  a  separate  valuation  of  the  two 
descriptions  of  stock,  and  immediately  returned  it  to  the  company. 

In  a  suit  in  Connecticut  on  the  premium  note,  Hosmer,  C.  J., 
said,  that  the  second  letter  of  Carrington  was  in  effect  a  new  pro- 
posal, as  it  specified  the  amount  and  mode  of  valuation,  which 
were  not  in  his  first  letter.  "This  was  a  new  proposal,  which 
Carrington  might  presume  the  company  would  accept,  but  could 
not  know  it.  The  office  had  assumed  no  such  obligation,  as  the 
office  had  not  agreed  to  underwrite  a  valued  policy  ;  neither  had 
the  defendants  agreed  to  receive  an  open  policy.  The  minds  of 
the  parties  had  not  met.     The  parties  never  did  agree." 

Three  of  the  judges  concurring  in  this  opinion,  judgment  was 
given  against  the  right  to  recover  on  the  premium  note.  Mr.  Jus- 
tice Bristol  dissented.^ 

1  The  Ocean  Ins.  Co.  v.  Carring-  heard  of  the  arrival  of  the  vessel  be- 
ton,  3  Conn.  K.  357.    Carrington  had     fore  writing  his  second  letter. 


20  OF   THE   CONTRACT   OF   INSURANCE.  [CHAP.  I. 

19.  There  is  no  difference  in  resiject  to  the  completion  and 
validity  of  an  agreement  for  an  insurance,  whether  it  he  for  a 
marine,  life,  or  fire  policy. 

20.  Where  an  agreement  for  insurance  is  m;tde  by  an  agent, 
it  must,  in  order  to  hind  his  principal,  he  made  within  his 
authority. 

The  Washington  Insurance  Company  in  New  York  were  in 
the  practice  of  taking  risks  against  fire  at  Savannah,  in  Georgia, 
and  had  taken  divers  risks  procured,  and  for  which  the  premium 
had  been  forwarded  by  R.,  their  agent  at  Savannah.  The  agent 
having  had  a  negotiation  with  P.  respecting  an  insurance  on  his 
stock  of  goods,  on  the  5th  of  January,  1820,  received  from  him 
the  premium  for  the  insurance  of  ^'5,000,  to  commence  from  that 
day,  for  which  he  gave  P.  a  receipt,  as  agent.  On  the  11th  of 
January,  and  before  the  company  had  received  the  premium  in 
New  York,  or  made  out  the  policy,  the  property  was  burnt.  The 
agent  had  previously  written  to  the  company,  that,  at  so  great  a 
distance,  "there  was  difficulty  in  getting  along  with  insurances, 
unless  the  company  would  furnish  him  with  blank  policies  ready 
signed,  or  his  receipt  for  the  premium  was  made  binding  upon  the 
company."  The  secretary  answered,  that  "the  directors  were 
aware  of  the  difficulty,  and  would  obviate  it  so  far  as  was  consist- 
ent with  the  principle,  that  no  insurance  should  be  binding  until 
the  premium  had  been  received  by  them  in  New  York."  The 
president  also  replied  to  him,  that  "  the  most  that  could  be  done 
was,  that  all  insurances  he  might  agree  to  make,  and  for  which 
the  premium  should  be  actually  paid,  and  received  in  New  York, 
the  office  would  consider  as  enuring  at  the  time  of  the  payment 
to  the  agent,  provided  the  company  should  be  satisfied  with  the 
risk." 

The  printed  conditions  and  proposals  of  the  company,  put 
up  in  II. 's  counting-room,  specified,  among  other  things,  that 
"applications  for  insurance  must  be  made  at  the  office  of  the  com- 
pany." In  April,  1821,  P.  tendered  the  amount  of  the  premium 
to  the  company  in  Now  York. 

Mr.  Chancellor  Kent  was  of  opinion,  that  no  ground  was  shown 
for  any  one  to  suppose  that  the  agent  was  authorized  to  bind  the 


SECT.  III.]  AN   AGREEMENT   FOR   INSURANCE.  21 

company  to  insure,  or  that  he  intended  to  bind  them  ;  and  that 
they  would  not  be  bound  until  after  receiving  the  premium  in 
New  York,  and  giving  their  assent  to  the  proposals  ;  and  he 
decreed  accordingly.^  The  case  being  carried  to  the  Court  of 
Errors,  Mr.  Justice  Woodworth,  with  the  concurrence  of  Mr. 
Chief  Justice  Savage  and  Mr.  Justice  Sutherland,  said  :  Upon  the 
payment  of  the  premium  to  the  agent,  the  applicant  for  insurance 
was  subject  to  the  following  contingencies:  1.  That  the  premium 
should  be  received  at  the  office.  2.  That  the  rate  of  premium 
should  be  recognized  at  the  office.  3.  That  the  company  should 
be  otherwise  satisfied  with  the  risk.  As  to  the  first,  there  can  be 
no  doubt.  As  to  the  second,  it  was  undoubtedly  intended,  that, 
if  the  rate  of  premium  taken  by  the  agent  conformed  to  the  rules 
and  regulations  of  the  company,  and  was  not  less  than  the  uniform 
rate  before  taken  in  other  and  similar  cases,  the  applicant  would 
be  entitled  to  a  policy  commencing  on  the  day  the  premium  was 
paid  ;  for,  although  it  is  provided  that  the  office  shall  recognize 
the  rate  of  premium,  it  must  be  understood  as  having  referred  to 
the  rules  and  regulations  sanctioned  by  the  board," 

Mr.  Senator  Colden,  a  judge  in  the  same  court,  considered  the 
agent  of  the  company  to  be  such  for  remitting  the  premium  ;  and 
since,  if  he  had  immediately  remitted  it  in  this  case,  the  company 
would  have  received  it  before  the  news  of  the  fire  reached  them, 
and  have  made  the  policy,  they  should  not  be  permitted  to  take 
advantage  of  his  delay. 

The  court  were  unanimously  of  opinion,  that  the  plaintiff  was 
entitled  to  recover.^ 

On  the  same  question  the  following  case  has  been  decided  in 
Massachusetts.  On  the  15th  of  January  a  proposal  was  made  in 
behalf  of  Thayer  to  a  mutual  fire  insurance  company  at  Concord, 
to  insure  buildings  in  Hopkinton,  where  he  resided,  distant  about 
twenty  miles.  The  directors  stated  the  terms  on  which  they 
would  take  the  risk,  and  the  secretary  of  the  company  filled  out 
proposals;  and  a  premium  note,  both  dated  on  the  16th  of  January. 


1  Perkins  v.  Washington  Ins.  Co.,        2  Perkins  v.  Washington  Ins.  Co., 
6  Johns.  Ch.  R.  485.  4  Cowen,  645. 


22  OF   THE   CONTRACT    OF   INSURANCE.  [CIIAP.  I. 

All  the  blanks  in  these  proposals  were  filled  up  by  the  secretary, 
excepting  that  for  the  value  of  the  buildings,  which  was  left  to  be 
filled  up  by  Thayer,  the  negotiation  being  made  by  his  agent, 
Harrington,  from  whose  description  the  secretary  had  filled  up  the 
proposals.  The  secretary  told  Harrington,  that,  when  the  pre- 
mium note  and  proposals  were  signed  by  Thayer,  they  might  be 
returned  to  him,  the  secretary,  by  mail  or  otherwise,  and  he  would 
then  return  the  policy  bearing  the  same  date  with  the  note  and 
proposal.  There  was  a  weekly  mail  between  Hopkinton  and 
Concord.  Harrington  presented  the  papers  to  Thayer,  at  Hop- 
kinton, on  the  28th  of  January,  two  mails  having  gone  thence  to 
Concord  after  the  15th.  Thayer  signed  the  proposal  without  fill- 
ing up  the  blank  for  the  value.  He  also  signed  the  premium-note, 
and  on  the  28th  gave  the  papers  to  Harrington,  who  was  post- 
master at  Hopkinton,  to  be  forwarded  to  Concord  by  the  next 
mail,  on  the  3d  of  February.  On  the  31st  of  January,  the  build- 
ings were  burnt.  On  the  3d  of  February,  Harrington  forwarded 
the  papers  by  mail,  and  they  were  duly  received  by  the  secretary. 
Mr.  Ky.  J.  Snaw,  giving  the  opinion  of  the  court  on  the  question 
whether  this  was  an  agreement  to  insure,  said  :  "The  proceedings 
at  Concord  did  not  purport  to  be  a  contract,  and  were  not  under- 
stood so  to  do.  Harrington  was  not  authorized  to  make  insur- 
ance." And  though  the  chief  justice  intimates  that,  where  a 
notice  is  actually  put  into  the  mail,  especially  if  forwarded  and 
beyond  the  control  or  revocation  of  the  party  forwarding  it,  it 
may  be  a  good  notice,  the  court  were  of  opinion  that  the  com- 
pany was  not  bound  in  this  case,  because  the  acceptance  of  the 
offer  of  the  company,  if  it  were  such,  and  the  papers  signifying  it, 
were  still  in  the  hands  of  the  postmaster,  who  was  the  agent  of 
Thayer,  and  had  not  been  forwarded,  at  the  time  of  the  buildings 
being  burnt.^ 

21.  An  offer  to  insure  is  not  binding  upon  the  party  making  it, 
unless  it  is  accepted  within  a  reasonable  time?  And  if  the  time 
or  place  of  acceptance  is  prescribed,  the  answer  must  be  in  con- 
formity.^ 

1  Thayer  v.  Middlesex  Mut.  Fire  Ins.  Co.,  10  Pick.  32G.  2  ibid. 

3  Eliason  r.  Ilensliaw,  A  Wheat.  225,  and  cases  above  cited. 


SECT.  IV.]  THE   EXECUTIOX   OP   THE   CONTRACT.  23 


SECTION    IV.       THE    EXECUTION    OF    THE    CONTRACT. 

22.  There  is  nothing  to  distinguish  the  execution  of  the  con- 
tract of  insurance  from  that  of  other  written  instruments.  Though 
a  policy  is  a  contract  between  two  parties,  each  of  whom  is  under 
certain  obligations,  and  entitled  to  demand  of  the  other  a  compli- 
ance with  certain  implied  and  expressed  conditions  and  stipula- 
tions, it  is  subscribed  only  by  the  insurer  himself,  or  by  his  agent 
or  attorney,  and  when  so  subscribed  and  actually  or  constructively 
delivered,  unconditionally,  to  the  assured,  it  is  a  completed  and 
binding  contract. 

23.  In  the  usual  form  of  the  policy  the  insurer  on  a  marine  risk 
acknowledges  payment  of  premium,  and,  in  fire  and  life  policies, 
of  the  whole  or  first  annual  premium,  or  deposit  or  first  instalment, 
and  accordingly  always  imports  a  settlement  by  cash  or  premium 
note,  of  a  part  or  the  ivhole  of  the  premium  simultaneously  with 
the  execution  and  delivery  of  the  policy.  This  is  equivalent  to 
saying,  that  the  contract  is  not  in  force  until  such  payment  or  set- 
tlement has  been  made. 

24.  But  the  rules  of  an  insurance  company,  or  the  agreement 
of  the  parties,  may  control  the  rule  just  stated,  and  the  j^olicy  be 
binding  upon  the  insurers,  though  the  premium  has  not  been  paid 
or  any  note  given  for  it,  nor  the  policy  actually  delivered  from 
the  insurance  ofUce.^ 

Thus,  in  a  case  that  occurred  in  Maine,  Loring,  one  of  the 
owners  of  a  vessel,  applied,  November  5th,  in  Portland,  for  insur- 
ance on  the  vessel,  and  the  terms  were  agreed  upon,  and  he  signed 
the  proposition-book,  which  was  considered  in  the  course  of  busi- 
ness at  the  office  to  entitle  the  applicant  to  a  policy,  though  the 
premium  note  had  not  been  signed,  the  frequent  practice  being  to 
fill  up  the  policy  immediately,  and  let  it  remain  in  the  office  for 
the  benefit  of  the  applicant,  and  persons  insured  frequently  did 
not  call  and  give  their  premium  notes,  and  take  away  their  poli- 
cies, until  the  time  of  credit  on  the  note  to  be  given  had  nearly 

1  Warren  v.  Ocean  Ins.  Co.,  16  Maine  K.  439. 


24  OF   THE   CONTRACT   OF   INSURANCE.  [CUAP.  I. 

expired.  Four  or  five  days  after,  the  applicant  called  again  at 
the  office,  and  was  told  by  the  president  that  his  policy  was 
ready,  and  he  then  took  a  premium  note  filled  up  at  the  office,  to 
get  it  signed  by  the  three  other  owners,  for  whom  he  was  not 
authorized  to  sign,  and,  who,  as  well  as  himself,  resided  out  of  the 
city.  On  the  6th  of  December,  the  president  of  the  office  met 
Loring,  and  requested  him  to  call  and  take  his  policy,  which  he 
replied  that  he  would  do  at  some  other  time.  On  the  9th,  news 
of  a  loss  was  received  at  Portland,  and  then  known  to  both  par- 
ties. Two  days  afterwards,  Loring  offered  the  premium  note  at 
the  office,  duly  signed,  which  the  president  declined  to  accept, 
and  refused  to  deliver  the  policy.  The  policy  contained  the  usual 
acknowledgment  of  the  payment  of  the  premium.  It  was  held 
that  the  contract  had  been  executed,  and  was  available  to  the 
assured  as  a  valid  insurance.^ 

It  has  been  held  in  the  Circuit  Court  of  the  United  States  for 
Pennsylvania,  by  Mr.  Justice  Washington,  in  an  action  of  trover 
for  a  policy,  that  an  agreement  for  an  insurance  was  executed  on 
the  part  of  the  underwriters,  by  their  causing  the  policy  to  be 
filled  up,  and  subscribing  it,  and  giving  to  the  applicant  notice 
of  its  being  filled  up,  mentioning  at  the  same  time  intelligence 
received  of  the  capture  of  the  vessel,  though  the  policy  still 
remained  in  their  office,  and  the  premium  had  not  been  paid,  nor 
had  any  note  been  given  for  it.- 

It  does  not  appear  in  this  case  that  the  underwriters  had  signi- 
fied their  dissent  until  the  agent  of  the  assured  had  called  at  their 
office,  and  offered  to  sign  the  premium  note.  If  this  offer  be  con- 
sidered to  be  equivalent  to  the  actual  signature  of  the  note  with 
the  assent  of  the  underwriters,  or  if  the  agreement  for  the  policy, 
which  was  probably  merely  verbal,  no  mention  being  made  of  its 
being  written,  is  considered  to  be  binding  on  the  parties,  then 
there  seems  to  be  no  question  of  the  liability  of  the  underwriters, 

1  Loring  V.  Proctor,  2G  Maine  11.  ancc  company,  according  to  the  terms 

by  Shcplcy,  IH  ;  lilanchard  v.  Waitc,  of  the  policy  and  the  rules  of  the  asso- 

28  Maine  R.  by  Shcpley,  51.     Each  elation  of  insurers. 

owner  was  separately  insured  by  each  2  Kohne  v.  Ins.  Co.  of  N.  America, 

of  the  twenty  uicmljcrs  of  the  insur-  1  AV'ash.  C.  C.  K.  93. 


SECT.  IV.]  THE  EXECUTION   OF   THE    CONTRACT.  25 

though,  if  their  liabiHty  rested  wholly  on  the  agreement,  the 
remedy  would  seem  to  have  been  more  properly  on  that.  The 
circumstance  of  the  policy  remaining  in  the  office  cannot  be  mate- 
rial, if  the  premium  has  been  paid,  and  the  policy  is  considered  to 
be  subject  to  the  order  of  the  assured. 

In  this  case,  the  doctrine  as  to  the  acts  requisite  to  the  com- 
plete execution  by  the  underwriters  of  the  agreement  to  insure  by 
their  having  executed  a  policy,  is  certainly  pushed  very  far.  Sup- 
pose the  applicant  had  subscribed  his  premium  note  at  his  own 
counting-room,  could  the  underwriters  have  maintained  trover  for 
it  ?  Perhaps  Judge  Washington  put  greater  stress  upon  the  notice 
that  the  policy  was  filled  up,  than  appears  in  his  report  of  the 
case.  It  may  possibly  have  been  such  as  to  admit  of  the  con- 
struction that  the  underwriters  acknowledged  that  they  held  a 
policy  belonging  to  the  assured,  and  waived  the  previous  payment 
of  the  premium,  or  delivery  of  his  note  therefor,  as  a  preliminary 
essential  to  the  consummation  of  the  contract. 

Where  it  was  notified  to  the  applicant,  upon  whose  application 
the  secretary  had  minuted  the  rate  of  the  premium  but  not  signed 
the  minute,  that  the  insurance  would  not  be  considered  to  be  in 
force  until  the  premium  should  be  paid,  it  was  held  in  Louisiana 
that  no  contract  existed  between  the  parties  so  long  as  the  pre- 
mium remained  unpaid,  though  the  policy  was  in  the  office,  filled 
up  and  signed,  when  the  loss  occurred,  and  policies  for  the  same 
party  had  previously  been  treated  as  being  in  force,  though  they 
remained  in  the  office  and  no  premium  had  been  paid.^ 

25.  Where  a  policy,  as  often  hajipens,  is  delivered  subsequently 
to  its  date,  the  risk  is  presumed  to  have  been  assumed  from  that 
date,  to  the  same  effect  as  if  then  delivered,  no  reason  appearing 
for  a  different  construction.^ 

26.  Insurance  is  often  negotiated  through  an  agency  for  one  or 
both  of  the  parties.  It  is  necessary  to  the  validity  of  such  a  con- 
tract, that  the  agent  acting  for  either  party  should  be  previously 


1  Berthoud  v.  Atlantic  Ins.  Co.,  13        2  Lightbody  v.  North  American  Ins. 
La.  R.  539.     See  also  Flindt  v.  Ohio     Co.,  23  Wend.  18. 
lus.  Co.,  8  Ohio  E.  505. 

VOL.    I.  3 


26  OF  THE  CONTRACT  OF  INSURANCE.       [CUAP.  I. 

authorized,  or  iJie  contract  suhsequcnily  ratified  and  adopted  by 
the  principal,  or  that  the  purported  principal  should  have  given 
the  other  party  sufficient  ground  to  believe  the  person  assuming  to 
be  ageiU  to  have  been  duly  authorised  as  such.^ 

Where  a  policy  was  delivered  by  an  agent  of  a  fire  insurance 
company  before  his  agency  was  revoked,  it  was  held  to  be  valid 
and  binding  on  the  company,  though  the  assured  had  prior  notice 
of  their  intention  to  revoke  it,^ 

27.  A  policy  in  which  the  value  of  the  subject  is  stated  is 
called  a  "valued  policy,"  one  in  which  it  is  not  stated  is  an 
"  op'en  policy." 

The  expression  "open  policy"  is  also  sometimes  used  in  refer- 
ence to  one  kept  open  for  new  subscriptions,  or  one  on  cargo  kept 
open  for  new  subjects  of  insurance,  in  which  lat^ter  case  the  voy- 
age and  risks  are  described  in  the  body  of  the  policy,  and  addi- 
tional amounts  or  new  cargoes  are  afterwards  entered,  from  time 
to  time,  at  the  foot  of  the  instrument,  by  merely  specifying  the 
amount,^  or  by  naming  a  different  vessel,  or  specifying  whatever 
circumstance  distinguishes  the  risk  or  subject  from  those  described 
in  the  body  of  the  policy. 

SECTION    V.       THE    PROVISIONS    OF    A    COMMERCIAL    POLICY. 

28.  The  parti/  reaUij  interested  as  the  assured  in  a  marine 
policy  does  not  always  appear  on  the  face  of  the  instrument. 
The  policy  is  executed  only  by  the  insurer.  The  party  insured 
is  most  frequently  named  in  the  policy,  but  not  always,  for  it  may 
be  made  by  the  party  named  for  his  own  benefit,  and  is  often 
made  by  him  as  agent  or  trustee,  in  wliich  case  the  party  inte- 
rested is  named  ;  or,  if  not,  the  agent  describes  himself  to  be  such, 
or  the  policy  is  declared  to  be  made  for  the  benefit  of  whom  it 
may  concern,  or  contains  some  indication  of  the  interest  of  another 
party  than  the  one  named. 


1  Sec  chapter  on  rarlies.  8  Form  of  the  Atlantic  ]\Iutual  la- 

8  LigJitbody  V.  North  American  Ins.     surancc  Co.,  New  Yoik. 
Co.,  23  Wend.  18. 


SECT,  v.]      THE   PROVISIONS    OF   A    COMMERCIAL   POLICY.  27 

• 

29.  Policies  always  bear  a  date,  hut  proof  by  yarol,  or  other- 
wise aliunde,  is  admissible  to  show  that  a  policy,  or  other  written 
instrument,  ivas  executed  and  delivered  and  became  a  binding 
contract,  on  a  different  day  from  its  date,^  which  is  an  exception 
to  the  general  rule  that  the  provisions  of  a  written  instrument  can- 
not be  superseded  by  parol  testimony.^ 

30.  The  essential  stipulation  is  usually,  at  least,  if  not  invari- 
ably and  universally,  expressed  by  the  word  "insure.^^ 

31.  The  thing  insured,  the  ^'subject,"  as,  ship,  freight,  cargo, 
profits,  commissions,  must  necessarily  appear  on  the  face  of  the 
policy. 

The  quantity  or  amount  of  these  subjects,  other  than  the  vessel, 
may  be  uncertain,  in  whicli  case  the  policy  is  applied  to  whatever 
there  may  be  at  risk,  not  exceeding  the  amount  or  quantity  ex- 
pressed in  the  policy. 

32.  In  the  United  States,  marine  policies  uniformly  contain  the 
provision  that  they  are  to  be  applicable  only  to  the  excess  of  the 
value  of  the  subject  over  the  amount  insured  by  prior  policies,  and 
in  respect  of  subsequent  insurances,  the  policy  is  to  be  applied  as 
if  no  such  hud  been  made. 

33.  The  value  of  the  subject  as  so  much  in  the  whole,  or  per 
hundred-weight,  yard,  or  piece,  etc.,  is  sometimes  declared  in  the 
policy  ;  and,  ivherc  it  is  not  so,  the  value  in  the  marliet  at  the 
beginning  of  the  risk  is  understood  to  be  referred  to  by  the  par- 
ties.^ 

A  policy  on  cargo  is  not  unfrequently  applicable  to  successive 
shipments,  coming  within  the  description  of  subject  specified. 

34.  The  premium  is  always  named. 

35.  The  risks,  or  perils,  or  causes  of  loss  for  which  indemnity 
is  promised,  must  be  specified. 

1  Stone  V.  Ball,  3  Levinz,  348 ;  Hall  3  A  Lexington  form  of  commercial 
r.  Cazanove,  4  East,  477  ;  Jackson  v.  policy  provides  respecting  valuation, 
Bard,  4  Johns.  230  ;  1  Duer,  Mar.  Ins.  that  in  case  of  loss  the  insurers  shall 
90.  be  liable  according  to  the  value  of 

2  The  French  Code  of  Commerce,  like  goods  at  the  port  of  destina- 
a.  332,  requioes  that  the  date  of  the  tion. 

execution  of  the  contract  shall  be  truly 
expressed. 


28 


OF   THE    CONTRACT   OF    INSURANCE. 


[CIIAP.  I. 


These  are  usually  perils  of  the  seas,  fire,  public  enemies,  thieves  ; 
captures,  restraints,  and  detentions,  by  governn:ients  or  people  ; 
and  barratry  of  the  master  and  mariners  ;  and  all  other  perils. 

The  first  of  these  descriptions,  namely,  "perils  of  the  seas,"  is 
the  most  comprehensive.  It  includes  all  the  others,  while  the 
subject  is  off  land,  except  the  last,  which  has  very  little  practical 
effect,  since  it  can  be  applied  only  to  perils  of  the  like  kind  to 
those  specifically  enumerated,  and  the  clause  is  very  rarely  relied 
upon  by  parties,  and  still  less  by  the  courts.^ 


1  There  is  some  diversity  in  the 
enumeration  of  perils  in  the  common 
forms  of  policies  of  different  places. 

The  old  and  the  present  enumera- 
tion in  English  policies  is,  "perils  of 
the  seas,  men  of  Tvar,  fire,  enemies, 
pirates,  rovers,  thieves,  jettisons,  let- 
ters of  mart  and  countermart,  surpris- 
als,  takings  at  sea,  arrests,  restraints 
and  detainments  of  all  kings,  princes, 
and  people,  of  Tvhat  nation,  condi- 
tion or  quality  soever,  barratiy  of  the 
master  and  mariners,  and  all  other 
perils." 

Some  American  companies  adopt 
this  enumeration,  exactly  or  very 
nearly,  as  the  Atlantic,  Sun,  Union, 
Mutual,  and  Mercantile  IMutual,  of 
New  York.  The  Boston  forms,  that 
of  the  Charleston  Insurance  Com- 
pany, and  the  Lexington  Life  and  Ma- 
rine Insurance  Company,  and  others, 
for  "  thieves "  substitute  "  assailing 
thieves;"  and  some  (the  New  York 
Mercantile  and  Charleston  Commer- 
cial and  some  others)  "overpowering 
thieves,"  intending  to  take  the  risk 
only  when  It  comes  within  the  descrip- 
tion of  "superior  force."  Some  omit 
"rovers,"  "letters  f)f  mart  and  coun- 
termart," "  surj)risals,"  "takings  at 
sea,"  and  "arrests,"  on  the  stippnsltiuu 


that  they  are  included  in  "  perils  of  the 
sea,"  which,  no  doubt,  cover  all  losses 
from  sujaerlor  force,  while  the  subject, 
whether  ship,  freight,  or  cargo,  is  at 
sea ;  but  the  risk  on  each  subject  is, 
under  many  policies,  intended  to  be 
covered  when  it  is  not  strictly  at  sea, 
as  on  the  ship  when,  in  the  course  of 
the  voyage,  it  is  hauled  up  for  repairs, 
and  so  on  for  freight,  and  on  goods 
also,  ■when,  in  tlie  prosecution  of  tlie 
voyage,  they  are  temporarily  on  land. 
Therefore,  it  is  safer  to  specify,  in  the 
general  form  of  marine  policies,  losses, 
by  fire,  and  all  losses,  intended  to  be 
covered,  that  happen  from  superior 
force,  by  other  words  than  "  perils  of 
the  sea." 

The  word  "jettisons,"  is  omitted  in 
the  Boston  form,  for  the  reason  that, 
when  a  jettison  is  made  on  account  of 
any  one  of  the  perils  insured  against 
by  a  policy,  indemnity  for  it  may  be 
claimed  under  such  peril,  and  is  im- 
pliedly included  in  the  stipulations 
common  to  marine  pohcles  respecting 
general  and  particular  average,  and 
also  comes  within  "perils  of  the  sea," 
where  that  phrase  is  used ;  but  if  it  is 
not  made  on  account  of  any  peril  in- 
sured against,  then  it  Is  not  intended 
to  be  covered,  and  so  the  term  "jet- 


SECT,  v.]      THE   PROVISIONS   OF  A   COMMERCIAL  POLICY.  29 

36.  The  risks  specified  in  the  policy  are  qualified,  and  limited 
or  enlarged,  by  the  description  of  the  voyage,  adventure,  or  em- 
ployment of  the  ship,  or  the  designation  of  the  species  of  trade  to 
which  the  insurance  relates.  So  the  place  where  the  insurance  is 
made,  as  we  shall  see,  affects  its  construction,  since  every  contract 
must  be  construed  in  reference  to  the  customs  and  usages  of  the 
country,  and  even  the  port  where  it  is  entered  into,  as  well  as  by 
the  subject-matter  to  which  it  relates,  and  the  surrounding  circum- 
stances. Such  customs  and  usages  are  in  effect  included  in  the 
contract,  and,  as  will  more  fully  appear  in  the  sequel,  have  a  mate- 
rial bearing  in  respect  to  the  character  and  extent  of  the  risks  and 
perils  included  in  the  insurance. 

The  established  printed  form  of  marine  policy  used  in  Great 
Britain  has  a  clause  expressly  referring  to  usage,  whereby  it  is 
declared  that  it  "shall  have  as  much  force  and  effect  as  the  surest 
writing  or  policy  of  assurance  heretofore  made  in  Lombard  Street, 
the  Royal  Exchange,  or  elsewhere,  in  London."  Similar  clauses 
have  been  sometimes  introduced  into  American  policies,  usually 
however  for  the  purpose  of  circumscribing  rather  than  enlarging 
the  risks  assumed  by  the  insurer  ;  ^  but  every  such  clause  is  wholly 
superfluous,  as  we  shall  see,  since  the  contract  itself,  by  legal 
construction,  and  without  any  express  provision,  provides  for  the 
cases  intended  to  be  provided  for  by  a  general  clause  of  this 
description. 

Provisions  are  ordinarily  introduced  in  filling  up  marine  policies, 
for  the  purpose  of  limiting,  enlarging,  or  otherwise  qualifying,  the 

tisons,"  may  •well  be  omitted  in  the  that  the  master  is  appointed  by  the 

specific  enumeration  of  perils  in  the  assured   himself,  and  it  is   supposed 

general  form  of  marine   policies,  if  that  he  will  be  more  circumspect  in 

averages  are  expressed  or  implied.  employing  a  master,  when  the   dis- 

The  risk  of  "  barratry  by  the  mas-  honesty  of  the  person  whom  he  em- 

ter  or  mariners,"  is  taken  by  some  ploys  is  at  his  own  risk.     The  Fire 

companies  without  any  words  of  qua-  and  Marine   Insurance  Company  of 

lification.      In   the   Boston   forms   of  Baltimore   and    the    South    Carolina 

policy  the  risk  of  barratry  is  not  in-  Insurance    Company   of    Charleston, 

sured  against  if  the  insurance  is  for  except  the  barratry  of  the  master  if 

the  owner  of  the  vessel.    This  qualifi-  he  is  consignee. 
cation  of  the  risk  arises  from  the  fact,         ^  Boston  form. 
3* 


30  or   THE   COXTRACT   OF  INSURANCE.  [CIIAP.  I. 

risks  enumerated  in  the  printed  form,  where  such  qualifications  are 
intended  by  the  parties. 

37.  The  description  of  the  risk  alivays  specifies  its  commence- 
ment and  termination,  by  time  or  place,  or  both,  or  by  some 
event. 

The  more  usual  commencement  of  the  risk  on  a  marine  policy 
is,  "at  and  from,"  or  ''from,"  a  certain  place  ;  and  its  continu- 
ance on  a  certain  voyage  outward  or  homeward,  or  both  outward 
and  homeward,  to  a  certain  place,  on  the  vessel  until  it  is  moored 
twenty-four  hours  in  safety,  and  usually  on  goods  until  they  are 
safely  landed. 

But  ill  the  coasting  trade,  or  on  successive  short  voyages,  and 
in  uncertain  employments,  the  policy  on  the  vessel  is  usually  made 
for  a  certain  period,  beginning  on  a  certain  day,  and  ending  on  a 
certain  other,  at  noon  ;  and  such  a  policy  is  called  a  time  policy. 
It  is  often  stipulated,  that,  if  the  vessel  is  at  sea  at  the  end  of  the 
specified  period,  the  risk  is  to  continue  at  the  same  rate  of  pre- 
mium until  its  arrival  at  some  port. 

38.  It  is  one  of  the  understood  conditions  of  a  marine  policy, 
that,  if  the  subject  is  not  put  at  risk  within  the  terms  of  the 
policy,  the  premium  will  not  be  due,  or  if  paid,  will  be  returnable. 
Such  return  is  often  expressly  stipulated  for. 

39.  A  marine  policy  is  subject  to  the  following  implied  condi- 
tions relative  to  the  risk,  to  be  complied  with  by  the  assured  :  — 

1st.    The  ship  must  be  sea-worthy . 

2d.  The  assured  must  not  make  any  material  misrepresentation, 
whether  written  or  oral,  relative  to  the  risk,  importing  that  it  is 
less  than  it  really  is. 

3d.  The  assured  must  state  to  the  insurer  every  fact  known  to 
him  that  is  material  to  the  risk,  and  which  is  not  known  to  the 
insurer,  or  presumed  to  be  so. 

If  the  assured  fails  to  comply  with  either  of  these  implied  con- 
ditions, the  policy  is  void  from  the  first. 

4th.  The  vessel  7iiust  not  deviate  from  the  voyage,  so  as  to 
substitute  another  risk  than  that  described  in  the  policy.  If  this 
condition  is  not  com[)lie(l  with,  the  policy  ceases  to  be  of  force 
thereafter.  ^ 


SECT,  v.]      THE   PROVISIONS    OF   A    COMMERCIAL   POLICY.  31 

40.  Where  the  risk  is  to  begin  on  the  shipment  of  goods,  sail- 
ing on  a  voyage,  or  on  any  event  or  circumstance  which  it  is  not 
obviously  to  be  presumed  may  be  distant  in  time,  it  is  an  implied 
condition  that  the  risk  shall  begin  within  a  reasonable  time. 

41.  It  is  an  implied  exception  to  the  risks  insured  against  in 
every  marine  policy,  that  the  assured  is  not  entitled  to  indemnity 
for  loss  incurred  by  his  oiun  fraud  or  gross  fault,  or  his  violation 
of  laiv. 

42.  The  risk  of  illicit,  in'ohibitcd,  and  contraband  trade  is 
expressly  excepted  in  American  policies  generally  ;  which  excep- 
tion does  not  appear  in  the  common  English  printed  form. 

43.  The  provision  is  common  to  both  English  and  American 
policies,  and  the  old  as  well  as  the  recent,  that  in  case  of  disaster 
the  assured  may  labor,  travel,  and  sne  for  the  safeguard  and  reco- 
very of  the  property,  for  the  expense  of  which  the  insurer  shall 
contribute  in  the  proportion  of  the  amount  insured  by  him  to  that 
of  the  whole  property  at  risk. 

44.  A  new  and  mutually  advantageous  stipulation  was  added 
to  American  policies  in  1825  and  subsequently,  that  acts,  of  either 
the  assured  or  insurer,  to  recover  or  save  the  property,  shall  not  be 
construed  to  be  a  ivaiver  or  acceptance  of  an  abandonment. 

Ao.  The  American  forms  generally  provide,  in  case  of  the 
blockade  of  the  port  of  destination,  that  the  assured  shall  not 
abandon,  but  that  the  vessel  may  enter  a  neighboring  port,  and 
wait  for  the  blockade  to  be  raised,  or  discharge  the  cargo  and  end 
the  voyage  there. 

46.  The  unsatisfactory  decisions  of  some  colonial  and  consular 
courts  of  admiralty,  between  1790  and  1814,  were  the  occasion 
of  a  stipulation  in  many  American  policies,  that  the  adjudications 
by  such  courts  should  not  be  conclusive  of  the  facts  adjudged,  as 
between  the  parties. 

47.  It  is  a  frequent  provision,  that,  in  case  of  the  assignment  of 
the  policy  without  the  consent  of  the  underwriter,  it  shall  be  void. 

48.  It  is  a  rule  in  the  United  States,  though  not  in  England, 
that  damage  or  loss  exceeding  half  of  the  value  of  the  subject, 
gives  the  assured  a  right  to  assign  what  remains  to  the  under- 
writer, and  to  be  paid  the  whole  amount  insured  on  the  subject. 


32  OF   THE   CONTRACT   OF   INSURANCE.  [CIIAP.  I. 

A  question  has  arisen  in  divers  cases,  whether  the  value  intended 
by  this  rule  is  that  at  which  the  subject  is  rated  in  the  policy,  or 
its  actual  value,  in  the  market  at  the  time  of  the  loss.  This  is  a 
material  question,  since  the  repairs  of  a  damaged  ship  may  cost 
more  than  the  ship  will  be  worth  when  repaired,  and  yet  be  less 
than  half  of  the  amount  of  its  value  by  the  policy.  This  question 
has  given  rise  to  a  stipulation  in  some  policies,  that  the  assured 
shall  not  have  the  right  to  recover  for  a  total  loss  on  account  of 
damage  merely,  unless  the  loss  adjusted  as  a  partial  one  exceeds 
one  half  of  the  amount  at  lohich  the  subject  is  insured  by  the. 
policy.^  And  a  like  construction  has  been  put  in  some  cases  upon 
a  policy  not  containing  such  a  provision. 

49.  We  shall  see  hereafter  more  particularly,  that,  where  the 
insurer  pays  to  the  assured  the  whole  sum  insured  on  the  subject, 
he  is  entitled  to  the  remnants  of  it,  so  far  as  he  insures  it,  which, 
or  the  proceeds  thereof,  usually  come  into  the  hands  of  the 
assured.  Some  policies  provide  that  the  assured,  in  accounting 
to  the  underwriters  for  these  remnants  or  proceeds,  shall  not  maTce 
any  deduction  for  the  wages  earned,  or  services  rendered  by  the 
officers  or  crew  previous  to  the  loss,  whether  allowed  to  them 
under  the  name  of  wages  or  otherwise.^ 

50.  It  is  a  general  custom,  in  adjusting  losses  on  the  vessel,  to 
deduct  one  third  of  the  expense  of  labor  and  new  materials  in 
repairing  or  replacing  parts  of  the  vessel  injured  or  destroyed  by 
the  perils  insured  against,  on  account  of  the  new  or  repaired  part 
being  better  than  the  old.  This  is  designated  the  allowance  of 
A  THiPD  FOR  NEW.  It  is  uudcrstood  as  being  not  applicable  to  a 
new  anchor,  and  heretofore  was  not  applied  to  a  new  chain-cable, 
this  exception  being  made,  when  such  cables  were  first  introduced, 
for  the  purpose  of  encouraging  the  introduction  of  them,  but  the 
third  is  now  deducted.  The  deduction  is  not  made  by  some 
underwriters  on  copper  sheathing  during  the  first  voyage.  A  par- 
ticular stipulation  has  been  introduced  into  some  forms  of  policy, 
that,  instead  of  the  allowance  of  a  third  for  new,  the  expense  of 

1  Boston  form.  "Western  inland  trade  contain  a  simi- 

2  Boston  form.     Policies  upon  the     lar  p'rovisioH. 


SECT,  v.]      THE   PROVISIONS    OF   A    COMMERCIAL   POLICY.  33 

recoppering  shall  be  subject  to  the  deduction  of  two  and  a  half 
per  cent,  for  each  month  after  the  vessel  has  been  coppered,  from 
the  net  expense  of  recoppering,  over  and  above  the  proceeds  of  the 
old  copjier  sheathing  and  nails,  which,  of  course,  exonerates  the 
insurer  from  all  expense  for  recoppering,  after  the  fortieth  month. ^ 

51.  The  premium  on  a  marine  insurance  is,  in  the  United 
States,  usually  paid  by  promissory  note,  and  it  is  generally  stipu- 
lated, that,  in  case  of  loss,  this  ])rcmium-note,  if  unpaid,  shall  be 
deductcdj^  and  the  provision  for  set-off  is  usually  extended  to  all 
demands  of  the  underwriters  against  (he  assured. 

52.  So7ne  forms  provide  that  the  assured  shall  not  abandon  and 
claim  for  a  total  loss,  on  account  of  capture  or  detention,  until 
proof  is  given  of  condemnation,  or  detention  for  ninety  days.'^ 

This  provision  seems  to  be  omitted  in  the  New  York  and  Bal- 
timore forms  in  time  of  peace.'^ 

53.  Where  less  property  is  put  at  risk  than  the  amount  insured, 
it  is  the  practice  to  return  the  premium  that  has  been  paid  on  the 
deficiency,  reserving  in  some  places  one  quarter,^  in  others  one  half^ 
of  one  per  cent,  on  the  amount  not  put  at  risk,  and  in  others''  ten 
per  cent,  of  the  auiount  of  the  premium,  which  will  be  in  some 
cases  more,  in  others  less,  than  a  quarter  or  half  of  one  per  cent, 
on  the  amount  insured,  according  as  the  rale  of  premium  is  high 
or  low. 

54.  All  marine  policies  exempt  the  underwriters  from  all  loss, 
except  total,  or  such  as  is  a  subject  of  contribution  on  certain  arti- 
cles ;  and  from  loss  by  damage  under  certain  specified  rates  on 
certain  other  enumerated  articles  ;  and  from  such  loss  under  a  cer- 
tain other  rate  on  the  ship,  cargo,  or  freight.  The  specific  excep- 
tions are  inserted  in  English,  and  in  some  American  policies,  under 


1  A  Boston  form.  The  policy  of  4  The  form  of  the  South  Carolina 
the  South  Carolina  Insurance  Com-  Insurance  Company  of  Charleston,  on 
pany  of  Charleston  provides  for  a  cargo,  provides  against  abandonment 
similar  deduction  for  each  month.  for   capture  or  detention,  except  in 

2  New  York,  Philadelphia,  and  Bal-  case  of  condemnation. 

timore  forms.  5  Baltimore  and  Charleston  forms. 

3  Boston,  New  York,  and  Philadel-  6  Boston  and  New  York  forms. 
phia  forms.  7  Philadelphia  form. 


34  OF   THE    CONTRACT    OF   INSURANCE.  [CIIAP.  I. 

a  memorandum,  or  N.  B.,  and  thence  the  articles  specified  are 
called  ^'memorandum  oriides,'^  and  the  body  of  exceptions  taken 
together,  "  the  memorandum." 

The  reason  of  these  specific  exceptions  is  the  great  liability  of 
such  articles  to  damage  from  slight  causes,  insomuch  that  it  is 
not  easy  to  discriminate  damage  by  ordinary  causes  from  that 
resulting  fiom  the  extraordinary  operation  of  the  perils  insured 
against,  which  latter  cause  of  loss,  as  will  be  subsequently  seen,  is 
the  only  one  against  which  the  assured  is  entitled  to  indemnity. 
Accordingly,  these  specific  exceptions  are  introduced  as  one  test 
of  the  operation  of  the  peril  being  extraordinary. 

There  is  a  great  variety  in  the  lists  of  memorandum  articles  pre- 
sented in  the  common  forms  of  policies  used  in  different  ports,  and 
also  in  the  degree  of  damage  at  which  the  liability  of  the  under- 
writer begins. 

A  much  greater  number  of  articles  appear  in  the  printed  Ameri- 
can forms  of  policies  than  in  the  English,  but  the  printed  form 
does  not  fully  present  the  practice  of  the  several  offices,  since 
each  one  has  rules  of  its  own,  and  introduces  exceptions  of  losses 
in  any  particular  case  at  discretion.^ 

1  The  memorandum  articles  of  the  allowing,  at  whatever  rate.  The  par- 
London  form  of  policy  used  at  Lloyd's,  ticular  qualifications  of  the  exceptions, 
which  is  generally  adopted  in  Great  as  whether  an  article  is  in  bags  or 
Britain,  (1  Arnould,  Ins.  21,)  and  casks,  &c.,  are  not  in  all  cases  noted, 
those  found  in  the  forms  used  in  Bos-  Bacon.  Cincinnati  Ins.  Co.  and 
ton,  New  York,  Buffalo,  Philadelphia,  Charleston  Com.,  10. 
Baltimore,  Charleston,  Cincinnati, and  Bread.  Charleston,  Boston,  and 
Lexington,  which  sufTiciently  repre-  New  York,  7  ;  riiiladelphia,  15  ;  Bal- 
sent  the  American  forms,  are  given  timore  and  Cincinnati,  10;  Lexing- 
below,  where  the  figures  express  the  ton,  100. 

rate  per  cent,  of  loss  under  which  the  Books  and  Stationary.     Cincinnati 

insurer   is   not  liable    for   particular  Ins.  Co.,  20 ;    Charleston  Com.  Ins. 

average.    Thus  100  indicates  that  the  Co.,  10. 

insurers   are   liable  only  for  a  total  Bags,  bagging.     New  York,  100; 

loss;  20,  that  they  are  liable  only  in  Philadelphia,  100,  or  if  by  stranding, 

case  of   ilamagc    to   the   amount   of  20  on  aggregate ;  Baltimore,  20  ;  Cin- 

twenty  per  cent,  of  the  value  of  the  cinnati,  20;  Charleston  Com.  Ins.  Co., 

article,  &(•.,  always  excepting  general  100;    South  Carolina  Ins.  Co.,  100; 

average,  which  all  the  forms  agree  in  Lexington  Ins.  Co.,  100. 


SECT,  v.]      THE   PROVISIONS    OF   A   COMMERCIAL   POLICY. 


35 


55.  Some  printed  forms  prescribe  to  the  manner  of  ajjpJying 
the  memorandum,  that  is,  whether  a  loss,  in  order  to  be  payable. 


Beans.  Baltimore,  in  bulk,  100 ; 
in  casks  or  bags,  10;  Cincinnati  Ins. 
Co.,  20 ;  Charleston  Com.  Ins.  Co., 
100. 

Butter.     Lexington  Ins.  Co.,  100. 

Cars,  railroad.  Charleston  Com. 
Ins.  Co.,  100. 

Cigars.     Cincinnati,  20. 

Cheese.  New  York,  100 ;  Phila- 
delphia, 100,  or  if  by  stranding,  20  on 
aggregate  ;  Lexington  Ins.  Co.  and 
Charleston  Ins.  Co.,  100. 

Carriages,  pleasure.  New  York, 
100 ;  Philadelphia,  100,  or  if  by  strand- 
ing, 20  on  aggregate  ;  Baltimore,  Lex- 
ington, Charleston  Ins.  Co.  and  Com. 
Ins.  Co.  of  Charleston,  100 ;  Cincin- 
nati, 10. 

Cassia,  not  in  boxes.  New  York, 
20;  Philadelphia,  15;  Baltimore,  20; 
Cincinnati,  20  ;  South  Carolina  and 
Charleston  Commercial,  20. 

Coffee,  in  bags  or  bulk.  New 
York,  10  ;  Philadelphia,  7  on  aggre- 
gate ;  Baltimore,  in  bags,  7,  in  bulk, 
100;  Cincinnati  and  Charleston  Com- 
mercial, 10  ;  South  Carolina  Ins. 
Co.  and  Charleston  Com.  Ins.  Co., 
100. 

Cocoa.  Baltimore,  in  bags,  7 ; 
Charleston  and  Charleston  Commer- 
cial, 10. 

Clothing.  Charleston  Commercial, 
100 

Crockery  and  Glass  Ware.  Charles- 
ton Com.  Ins.  Co.,  10. 

Corn.     Cincinnati,  10. 

Cotton.     Lexington,  10. 

Fish.  England,  Boston,  and  New 
York,  100,  or  if  by  stranding,  7  on 
aggregate ;   Philadelphia,  Baltimore, 


Lexington,  South  Carolina,  Charles- 
ton, and  Charleston  Com.,  100. 

Flaxseed.  England,  100  ;  Boston, 
7  ;  New  York,  7  ;  Baltimore,  7.  See 
Seed. 

Flax.  England,  5  ;  Boston,  20  ; 
New  York,  8  ;  Philadelphia,  7  ;  Bal- 
timore, 20  ;  Charleston,  20  and  7. 

Fruit.  Boston,  100,  or  if  by  strand- 
ing, 7;  New  York,  100;  Philadelphia, 
100,  or  if  by  stranding,  20  ;  Baltimore, 
100;  Charleston,  100. 

Furniture,  household.  New  York, 
100;  Philadelphia,  100,  or  if  by  strand- 
ing, 20  on  aggregate;  Baltimore,  100  ; 
Charleston,  100;  Cincinnati,  100. 

Flour.     Charleston,  100  and  10. 

Furs.     Lexington,  100. 

Grain.  England,  8;  Boston,  100, 
or  if  by  stranding,  7  on  aggregate  ; 
New  York,  Philadelphia,  Baltimore, 
and  Charleston,  100. 

Gunny-bags.  Charleston  Com.  Ins. 
Co.,  10. 

Hemp.  England,  5  ;  Boston,  20  on 
whole  aggregate  ;  New  York,  20  ; 
Philadelphia  and  Lexington,  15  ;  Bal- 
timore, Cincinnati,  and  Charleston, 
20. 

Hides  and  Skins.  England,  5 ; 
Boston,  100,  or  if  by  stranding,  7  on 
aggregate  ;  New  York,  100  ;  Phila- 
delphia, 100,  or  if  by  stranding,  20  ; 
Baltimore,  10 ;  Lexington  and  Charles- 
ton, 100. 

Plempen  Yarn.  New  York,  100  ; 
Philadelphia,  100,  or  if  by  stranding, 
20  on  aggregate;  Baltimore,  100; 
Charleston,  100. 

Hops.  Charleston  Com.  Ins.  Co., 
100. 


36 


OF  THE  CONTRACT  OF  INSURANCE. 


[chap.  I. 


must  amount  to  seven,  ten,  or  other  rate  per  cent,  on  the  whole 
quantity  of  the  article  at  risk,  or  on  each  box  or  bale,  or  each  ten 


Iron.  Boston,  New  York,  Phila- 
delphia, and  Baltimore,  in  bars,  bun- 
dles, rods,  hoops,  or  plates,  100 ; 
Charleston  Ins.  Co.,  if  by  -wet  or 
rust,  100  ;    Cincinnati,  20. 

Indian  Meal.  New  York,  100  ; 
Philadelphia,  15  on  aggregate;  Bal- 
timore, 100  if  not  in  casks,  10  if  in 
casks;  Charleston,  100  and  20. 

Ice.     Charleston  Ins.  Co.,  100. 

Jerked  Beef.  Charleston  Com.  Ins. 
Co.,  100. 

Lard.     Lexington,  100. 

Looking-Glasses.  New  York,  100  ; 
Philadelphia,  100,  or  if  by  strand- 
ing, 20  on  aggregate  ;  Baltimore  and 
Charleston,  100. 

Liquids.     Baltimore,  in  casks,  10. 

Machinery.  Charleston  Com.  Ins. 
Co.,  100,  if  by  rust. 

Madder.  New  York,  Philadelphia, 
Baltimore,  and  Charleston,  100  ;  Cin- 
cinnati, 10. 

Musical  Instruments.  New  York, 
100  ;  Philadeliihia,  100,  or  if  by 
stranding,  20  on  aggregate  ;  Balti- 
more, 100 ;  Lexington  and  Charles- 
ton, 100. 

Matting.  New  York,  20  ;  Phila- 
delphia, 15;  Baltimore,  20;  Cincin- 
nati, 10  ;  Charleston  Com.  Ins.  Co.,  20. 

Nuts.     Cincinnati,  10. 

Oil-clolh.     Cincinnati,  10. 

Osnaburgs.  Charleston  Ins.  Co, 
100. 

Paintings.  Charleston  Com.  Ins. 
Co.  100;  Cincinnati,  20. 

Palmleaf.  Charleston  Com.  Ins. 
Co.,  20. 

Paper.     Cincinnati,  20. 

Paper-hangings.     Cincinnati,  20. 


Pepper.  New  York,  10  ;  Phila- 
delphia and  Baltimore,  in  bags  or 
bulk,  7  on  aggregate;  Cincinnati,  10; 
Charleston,  in  bags,  10. 

Peas.  Baltimore,  in  bulk,  100,  in 
casks  or  bags,  10;  Charleston  Com. 
Ins.  Co.,  100. 

Peltries.     Baltimore,  20. 

Pork.     Lexington,  100. 

Bice.  Boston,  Philadelphia,  and 
Baltimore,  7 ;  New  York  and  Cincin- 
nati, 10;  Lexington,  100. 

Rags.  New  York  and  Cincinnati, 
100  ;  Philadelphia,  100,  or  if  by  strand- 
ing, 20  on  aggregate  ;  Baltimore,  100 ; 
Charleston,  20  and  1 00. 

Rope,  bale.  Charleston,  100;  Cin- 
cinnati, 20. 

Roots.     Charleston  Ins.  Co.,  100. 

Salt.  England,  100  ;  Boston,  100, 
but  if  by  stranding,  7  on  aggregate ; 
New  York,  Philadeljihia,  Baltimore, 
Cincinnati,  Lexington,  and  Charles- 
ton, 100. 

Seed.  England,  100  ;  Philadel- 
phia, 100,  or  if  by  stranding,  20  on 
aggregate  ;  Baltimore,  100  ;  Cincin- 
nati, 20. 

Sugar.  England,  5;  Boston,  100, 
or  if  by  stranding,  7  on  aggregate ; 
New  York,  7  ;  Philadelphia,  7  on 
aggregate  ;  Baltimore,  in  boxes  or 
casks,  7  ;  Charleston,  7  and  10  ;  Cin- 
cinnati, 10. 

Steel.  New  York,  Philadelphia, 
Baltimore,  Charleston,  100. 

Sumac.  New  York,  Philadelphia, 
Baltimore,  Charleston,  100. 

Saltpetre.  PIiiladeli)hia,  7  on  ag- 
gregate ;  Charleston  Com.  Ins.  Co., 
10. 


SECT,  v.]      THE   PROVISIONS    OF   A   COMMERCIAL   POLICY. 


37 


boxes  or  bales,  in  order  of  invoice, ^  and  stipulations  of  this  de- 
scription are  very  frequently  inserted,  in  filling  the  blanks  of  the 
printed  form. 

56.  In  the  United  States  the  iinderivr iters  are  exonerated  from 
loss  on  goods  by  dampness,  change  of  flavor,  or  being  spotted,  dis- 
colored, or  mouldy,  unless  caused  by  actual  contact  with  sea- 
water.^ 

57.  A  loss  is  usually  made  imyahh  in  sixty  days  after  proof  o{ 
it,  and  of  its  amount,  is  exhibited  to  the  insurers. 

58.  Marine  policies,  and  also  those  upon  inland  trade,  provide 
for  submitting  disputes  between  the  parties  to  arbitration.^ 


Straw  Braid  and  Straw,  Cut,  100. 

Tobacco.  England,  5 ;  Boston,  7, 
on  aggregate  value  ;  New  York,  100 ; 
Philadelphia,  leaf  or  stem,  15  ;  Balti- 
more, Jn  bulk,  100  ;  leaf  in  bales, 
stems  in  casks  or  bales,  20 ;  leaf  in 
casks,  10  ;  Cincinnati,  20  ;  Lexing- 
ton, 100;  Charleston,  100,  leaf  7  and 
10,  or  in  bales  20,  stems  20. 

Tin  Plates.  New  York,  Philadel- 
phia, and  Baltimore,  100;  Charleston, 
100 ;  or  Charleston,  Com.  Ins.  Co.,  if 
by  wet  or  rust,  100  ;  Cincinnati,  20. 

Twine.     Charleston  Ins.  Co.,  100. 

Vegetables  and  Roots.  New  York, 
100  ;  Philadelphia,  100,  or  if  bj  strand- 
ing, 20  on  aggregate ;  Baltimore,  ve- 
getables and  medicinal  roots,  100; 
Charleston,  100. 

"Wicker  Ware  and  "Willow.  New 
York,  100  ;  Philadelphia,  100,  or  if 
by  stranding,  20  on  aggregate  ;  Bal- 
timore and  Charleston,  100. 

"Wire.  New  York,  Philadelphia, 
Baltimore,  Charleston,  100. 

All  East  and  "West  India  articles, 
Charleston  Ins.  Co.,  10. 

Articles  of  any  kind  by  stranding 
or  collision.  Charleston  Com.  In?. 
Co.,  20. 

VOL.    I.  4 


Articles  perishable  in  their  own 
nature.  Boston,  100,  or  if  by  strand- 
ing, 7  on  aggregate  value ;  New  York, 
100 ;  Philadelphia,  100,  or  if  by  strand- 
ing, 20  on  aggregate  ;  Baltimore, 
Charleston,  Lexington,  100  ;  Cincin- 
nati, 20. 

All  other  articles,  ship  and  freight. 
England,  3  ;  Boston,  New  York,  Phi- 
ladelphia, Baltimore,  Lexington,  and 
Charleston,  5. 

1  Form  of  Atlantic  Ins.  Co.  of  New 
York  for  China  risks. 

2  Boston,  New  York,  Philadelphia, 
and  Baltimore. 

3  The  provision  for  arbitration  has 
little  or  no  practical  efficacy  in  ma- 
rine insurance  in  Great  Britain  or  the 
United  States.  2  Story,  Equit.  Ju- 
risprudence, §§  1450,  1457;  Kill  v. 
Hollister,  1  "Wils.  149  ;  Thompson  v. 
Charnock,  8  T.  Ft.  139.  The  assured 
may  bring  a  suit  for  a  loss  with- 
out offering  a  reference.  Robinson 
V.  Georges,  17  Maine  R.  131.  The 
remedy  at  law  for  the  breach  of  such 
a  stipulation  would  be  very  precari- 
ous if  it  were  brought  into  litigation, 
for  it  would  be  difficult  for  the  jury 
to  estimate  the  damage  occasioned  to 


38  OF   THE    CONTRACT    OF   INSURANCE.  [CHAP.  I. 

59.  Fishing  voyages  hove  certain  peculiarities  requiring  pecu- 


a  party  by  the  other  refusing  to  sub- 
stitute an  arbitration  for  the  ordinary 
legal  tribunals  ;  and  these  tribunals, 
■when  resorted  to  by  the  assured,  have 
declined  to  admit  a  plea  to  their  juris- 
diction, that  a  judicatory  has  been 
established  by  voluntary  agreement 
of  parties,  to  supersede  those  provided 
by  law,  in  respect  to  future  causes  of 
action  ;  though  they  lend  their  author- 
ity to  the  enforcement  of  an  award 
once  duly  made  by  referees  duly  ap- 
pointed. There  does  not  appear  to 
be  any  way  of  giving  effect  to  such  a 
stipulation,  except  through  the  agency 
of  a  judicial  tribunal,  which  is  almost 
equivalent  to  annulling  the  stipulation. 
The  French  ordinance  of  Marine 
of  1G81,  tit.  Insurance,  a.  3,  2  Val. 
143,  requires  that  the  policy  shall 
contain  the  clause  for  submission  to 
arbitration ;  but  in  another  part,  a.  70, 
implies  that  this  is  optional ;  and  the 
French  Code  of  Commerce,  tit.  X.  In- 
surance, s.  1,  n.  332,  after  enumerat- 
ing this  among  the  provisions  of  the 
policy,  leaves  its  insertion  to  the  dis- 
cretion of  the  parties.  By  the  French 
law,  as  stated  by  Valin,  where,  in  a 
dispute  between  copartners,  or  the 
parties  to  a  policy  of  insurance  con- 
taining this  clause,  eitlier  demands 
a  submission  to  arbitrators,  and  the 
other  refuses  to  name  one,  a  judicial 
tribunal  is  authorized  to  name  one 
for  the  j)arty  so  refusing.  Neither 
the  Knglish  tribunals,  nor  our  own, 
have  any  such  authority,  unless  it  is 
conferred  by  the  agreement  of  par- 
ties in  a  case  ab-eady  ])cnding.  Po- 
thier,  Ins.,  n.  201,  is  of  ojiiMion  that 
the  tribunals  applied  U>  ihv  the  regis- 


tration and  execution  of  an  award  of 
unskilled  arbitrators,  in  a  case  involv- 
ing questions  of  law,  should  pay  no 
regard  to  it,  to  which  Emerigon  re- 
plies, that,  at  Marseilles,  such  eases 
are  submitted  to  advocates,  and  that 
the  parties  usually  acquiesce  in  the 
award.  So  most  cases  of  disagree- 
ment on  policies,  in  England  and  the 
United  States,  are  settled  by  refer- 
ence voluntarily  agreed  upon  by  the 
parties  after  the  questions  arise.  If  I 
rightly  understand  Emerigon,  a  party 
has  a  right  to  negative  the  nomination 
made  by  the  other,  in  which  case  the 
judge  nominates  the  two  arbitrators  ; 
and  if  so,  the  proceeding,  so  far  as  it 
is  compulsory,  is  ecpivalent  to  a  refer- 
ence of  a  case,  by  one  of  our  courts, 
to  a  master  in  chancery,  or  to  audi- 
tors, subject  to  the  supervision  of  the 
court.  But  what  distinguished  the 
proceeding  from  an  arbitration,  in  our 
acceptance  of  the  term,  is,  that  an  ap- 
peal lay  from  the  award,  as  is  stated 
by  both  Valin  and  Emerigon. 

One  ground  of  objection  to  setting 
up  and  enforcing  an  agreement  for 
the  submission  of  all  future  disputes 
between  party  and  party  to  the  final 
decision  of  arbitrators  is,  that  associa- 
tions might,  on  the  same  principle,  be 
formed,  with  agreements  to  have  all 
questions  of  the  civil  rights  and  obli- 
gations of  the  members  among  them- 
selves settled  independently  of  the 
public  legal  tribunals  and  the  general 
laws,  which  would  be,  thus  far,  an 
impcrium  in  imperio.  Some  of  tlie 
Charleston  forms  of  policy,  if  not  all, 
provide  that  the  parties  "may"  sub- 
mit disputes  to  aibitration. 


SECT,  v.]      THE   PROVISIONS    OF   A   COMMERCIAL   POLICY.  39 

liar  provisions,  so  that  some  companies  have  a  distinct  printed 
form  of  policy  for  them.^ 

The  enumeration  and  descriptions  of  risks  are  the  same  ;  and 
so  also  all  the  provisions  as  to  losses,  that  are  applicable  to  such 
voyages,  are  expressed  in  the  same  words. 

The  principal  differences  are  clauses  providing  that  "catchings," 
shall  take  the  place  of  "outfits,"  in  a  certain  proportion,  as  the 
former  are  gained  and  the  latter  consumed  in  the  course  of  the 
voyage;^  and  that  "catchings"  shipped  homeward  by  other  ships 
shall  not  diminish  the  amount  at  risk  under  the  policy,^  or  that 
catchings  shipped  homeward  by  other  vessels  shall,  in  certain 
cases,  diminish  the  amount  at  risk  under  the  policy,  where  the 
assured  can  be  presumed  to  have  notice  of  their  being  so  shipped, 
and  so  run  the  risk  himself  or  get  other  insurance  : 

That,  in  case  of  the  ship  and  all  on  board  being  lost,  the  value 
insured  by  the  policy  shall  be  presumed  to  have  been  at  risk  at 
the  time  of  the  loss  :  * 

That  the  policy  shall  not  attach  on  catchings  until  permanently 
stowed  under  deck,^  or  shall  not  attach  on  "blubber,"  nor  on  oil, 
until  it  is  put  into  casks  ;  nor  on  other  articles  of  catchings  until 
stowed  below  deck  : 

And  that  jettisons  of  catchings  from  on  deck  shall  not  be  con- 
tributed for  in  general  average. 

Policies  on  whaling  voyages  are  made  by  many  offices  on  the 
blank  forms  used  for  con)mon  marine  policies,  with  additional  pro- 
visions to  adapt  the  contract  to  fishing  interests. 

So  policies  on  voyages  for  cod,  mackerel,  and  other  Jishing  voy- 
ages, and  on  those  for  taking  seals,  are  usually  made  upon  the 
common  printed  forms  for  marine  policies. 

60.  The  great  inland  commerce  of  the  country  gives  occasion 
for  a  proportionate  business  of  insurance,  on  risks  differing  very 
considerably  from  those  of  maritime  navigation,  and  accordingly 
demanding  modified  forms  of  the  contract  of  insurance.     The 

1  New  York    and    New    Bedford  3  jvfew  York  form, 
forms.  4  Xew  Bedford  form. 

2  New  York    and    New   Bedford  ^  New  York  form, 
forms. 


40  OF   THE    CONTRACT   OF   INSURANCE.  [cHAP.  I. 

forms  of  policies  on  this  trade  present  the  following  among  other 
provisions.^ 

The  assured  on  the  vessel  is  required  to  recover  and  repair  it  in 
case  of  accident,  if  practicahle  ;  and  if  he  neglect  to  do  so,  is 
bound  to  give  notice  to  the  underwriters,  if  within  a  convenient 
distance,  who  have  thereupon  a  right  to  repair  at  their  own  ex- 
pense, and  that  of  the  assured  proportionally. 

The  assured  is  not  to  make  abandonment  or  sale  of  the  vessel 
on  account  of  damage  or  disaster  without  the  consent  of  the  insur- 
ers,^ or  notice  to  them,  if  within  a  certain  distance.^ 

The  insurers  are  not  liable  for  wages  and  provisions  of  the  mas- 
ter and  crew  while  detained  by  disaster,  but  only  for  their  extra 
services.* 

In  some  forms  ^  two  and  a  half  per  cent,  is  deducted  on  payment 
of  a  loss. 

The  seasons  of  the  year  are  specified  when  the  vessel  may 
make  passages  in  certain  waters,  and  when  in  others,  and  when  it 
is  to  be  laid  up  for  the  winter.^ 

It  is  also  specified  whether  the  insurers  take  the  risk  of  fire, 
flood,  and  ice,  when  the  vessel  is  laid  up  during  the  winter.'^ 

The  specification  of  the  risks,  for  the  lakes  and  rivers,  in  some 
forms,  includes  "perils  of  the  seas,  rivers,  lakes,  fires,  jettisons, 
enemies,  pirates,  assailing  thieves,  and  all  other  perils  ;"  in  others, 


1  These  provisions  arc  taken  from  The  provisions  mentioned  in  the  text 

policies  of  the  St.  Louis  companies,  do  not  belong  to  all  the  forms  in  use 

as  stated  in  the  St.  Louis  Insurance  in  those  three  places.     There  is  some 

Reporter,   No.  3,  for  ISIarch,  1851 ;  diffei'ence  in  the  forms  of  the  same 

that  of  the  Delaware  Mutual  Safety  place.     Distinct  forms  are  also  used 

Company,  of  Philadelphia ;  and  those  on  different  kinds  of  craft,  as  a  steam- 

of  llic  Columbus,  the  Mutual,  and  the  boat  or  sailing  vessel ;  or  on  diilercnt 

Nortli-wostcrn  Insurance  Companies,  navigations,  as  on  a  canal,  or  river, 

which  do  business  at  Buflalo,  the  last  or  lake. 

being   established  at    Oswego  ;    also  2  Bufliilo. 

those  of  Cincinnati  and  Lexington.  3  Philadelphia. 

Tiie  forms  of  contract  used  in  these  ^  St.  Louis, 

places  will   probably  represent  those  5  Jhid. 

generally  adojited  on  the  ]\Iissi.ssippi,  c  Buffalo, 

the  lakes,  ami  oilier  western  waters.  '''  Ibid. 


SECT,  v.]      THE   PROVISIONS   OF  A   COMMERCIAL  POLICY.  41 

where  the  navigation  does  not  communicate  with  the  ocean,  the 
specification  is  of  "  perils  of  the  lakes,  rivers,  canals,  fires,  jettisons, 
and  damage  to  the  vessel." 

The  risk  of  liability  for  damage  done  to  other  vessels  by  the 
one  insured  is  sometimes  expressly  excepted. 

The  risk  of  damage  by  the  bursting  of  boilers  or  collapse  of 
flues,  or  breaking  of  the  machinery  of  steamboats,  except  from 
unavoidable  external  cause,  is  also  excepted.^ 

So  also  damage  by  overloading  : 

By  having  on  board  gunpowder :  ^ 

Innavigability  from  rottenness  : 

Risk  of  illicit  or  contraband  trade  :  and 

Risk  from  war."' 

The  right  of  abandonment  for  total  loss  is  restricted  to  cases 
where  the  recovery  or  reparation  of  the  vessel  is  impracticable. 

It  is  stipulated,  that  exertions  to  save  the  property  shall  not 
be  a  waiver  or  acceptance  of  an  abandonment,  as  in  marine  poli- 
cies : 

That  the  subject  insured  and  the  salvage  abandoned  shall  be 
free  from  lien  and  encumbrance  : 

That  on  change  of  master  the  insurers  may  terminate  the 
policy  :  "* 

That  the  assured  shall  not  abandon  cargo  for  the  amount  of 
damage  or  expense  merely,  unless  he  would  be  liable  to  the 
amount  of  fifty  per  cent,  in  an  adjustment  as  a  partial  loss,  as  in 
some  forms  of  marine  policies  : 

That  in  adjusting  a  loss  on  a  vessel,  reference  shall  be  had  to 
its  value  at  the  time  of  the  loss,  unless  it  is  valued  in  the  policy  : 

That  detention  by  the  season  of  the  year  shall  not  authorize 
abandonment : 

That  delay  on  account  of  low  water  shall  not  prejudice  the 
insurance : 

1  Some  insurers  take  the  risk  of  fire        2  Cincinnati,  Philadelphia, 
in  such  case.     The  Delaware  Mutual        3  Delaware  Mutual  Safety  and  Phi- 
Safety  Co.,  of  Philadelphia,  lets  in  all  ladelphla ;  the  same  form  includes  risk 
damage  by  these  causes,  in  case  of  of  enemies, 
stranding.  4  Lexington,  Philadelphia, 
4* 


42  OF   THE   CONTRACT   OP  INSURANCE.  [CHAP.  I. 

That  abandonment  shall  be  made  in  writing  : 

That  in  case  of  loss,  the  premium  note  ;  or  that  and  all  other 
demands  of  the  insurer,  shall  be  deducted  : 

That  the  contract  shall  be  void  if  hemp  is  carried  on  deck ;  and 
in  case  of  over  insurance,  or  of  assignment  of  the  policy,  or  of  the 
subject,  without  the  consent  of  the  insurers  : 

That  the  adjustment  of  losses  shall  be  subject  to  certain  usages  :  ^ 

That  on  return  of  premium,  ten  per  cent,  of  its  amount  shall  be 
retained. 

61.  A  distinct  form  of  policy  is  sometimes  used  for  insurance 
on  canals.^ 

The  usual  description  of  cargoes,  in  a  policy  kept  open  for  new 
subscriptions,  is  "all  kinds  of  goods,  merchandise,  and  country 
produce."  "Money,  bullion,  promissory  notes,  and  other  evi- 
dences of  debt,"  are  excepted. 

In  the  blanks  of  the  printed  forms  are  inserted  a  description  of 
the  boat  or  boats,  the  limits  of  the  navigation,  and  the  period  of 
time,  or  the  passage  for  which  the  insurance  is  made. 

The  boats  may  be  loaded  in  the  customary  way : 

May  touch  and  stay  at  the  usual  places ;  or  for  discharging  and 
taking  in  cargo  ;  or  when  necessary  on  account  of  an  accident  or 
stress  of  weather. 

The  perils  insured  against  are,  of  the  "  rivers,  canals,  and  fires ; " 
excepting  "  thefts,  robbery,  ice,  and  barratry  ; "  and  losses  from 
"want  of  ordinary  care  and  skill,"  or  from  "the  boat  being  unduly 
laden."  3 

Any  loss  must  be  ascertained  before  reshipping  the  goods  at  the 
port  where  they  are  landed. 

The  provisions  for  recovering  and  saving  the  property  ;  payment 
of  loss  in  sixty  days  after  proof;  deducting  the  premium  in  case 

1  Those  of  New  York  are  referred  used  for  inland  navigation,  but  which 
to  in  a  BiifTalo  form.  differs  much  less  from  the  common 

2  Tlie  jtrovisions  mentioned  in  tlic     marine  policies. 

text,  under  this  head,  are  takrn  mostly  ■^  Bufflilo  form.     The  perils  enume- 

from  forms  used  in  Buffalo,  in  the  rated   in   the   Philadelphia  form  for 

trade  between  that  place  and  Albany,  inland   navigation,  are   the  common 

Some  arc  from  a  rhiladelphiu  form  perils  of  marine  policies. 


SECT,  v.]      THE   PROVISIONS   OF   A   COMMERCIAL  POLICY.  43 

of  loss  ;  respecting  prior,  subsequent,  and  over  insurance  ;  illicit 
trade  ;  innavigability  from  rottenness  ;  assignment  of  claims  (in 
case  of  loss)  against  third  parties  by  whom  the  loss  was  occasioned  ; 
the  assignment  of  the  policy  without  the  consent  of  the  insurers  ; 
the  settling  of  averages  on  each  passage  separately  ;  and  settle- 
ment by  arbitration,  are  the  same  as  those  already  stated  in  mari- 
time insurance,  or  that  on  the  lakes  and  the  Mississippi. 

No  loss  is  payable  that  does  not  amount  to  one  hundred  dollars 
on  one  cargo. 

Notice  of  loss  is  to  be  forthwith  given  to  the  insurers. 

It  is  expressly  provided  that  the  boat  shall  be  kept  tight,  and 
well  found  and  manned. 

Lights  must  be  shown  when  the  boat  is  moored  at  night,^  or 
anchored  or  under  way.^ 

Goods  carried  on  deck  must  be  secured  thereto. 

The  form  of  policy  used  in  this  trade,  like  one  already  men- 
tioned for  marine  risks,  is  so  framed  as  to  admit  of  adding  new 
subjects  by  merely  indorsing  the  date,  amount,  subject,  name  of 
boat,  passage  or  period,  and  premium. 

62.  A  distinct  form  of  policy  is  used  for  insurance  of  the  car' 
goes  ofjlat-hoats  on  the  rivers. 

A  Cincinnati  form  of  that  description  provides, — 

That  the  risk  may  continue  five  days  after  arrival : 

That  the  risks  are  those  of  "the  rivers,  fire,  and  jettison  :" 

That  the  boat  may  touch  and  stay  during  the  night : 

That  the  insurers  shall  not  be  answerable  for  the  conduct  of  the 
master  or  pilot ; 

Or  for  damage  by  ordinary  stranding ; 

Or  for  damage  to  articles  subject  to  inspection,  if  the  same  pass 
inspection  as  sound  ; 

Or  for  damage  to  any  article,  except  by  fire  or  actual  contact 
with  water  ; 

Or  for  damage  by  goods  being  damp,  spotted,  discolored,  mouldy, 
or  rusty,  unless  caused  by  some  disaster  to  the  boat ;  or  in  any 
case  for  merely  soiled  or  stained  packages  : 

1  Buffalo  form.  2  Philadelphia  fonn. 


44  OF   THE   CONTRACT   OF  INSURANCE.  [CIIAP.  I. 

That  damaged  goods  shall  not  be  sold  at  any  place  except  that 
of  destination,  unless  in  a  perishing  condition  : 

And  that  the  boat  shall  be  properly  manned,  and  be  laden  only 
to  a  specified  depth. 

SECTION    VI.       THE    PROVISIONS    OF    A    FIRE    POLICY. 

63.  The  general  principles  applicable  to  policies  against  Jlre 
on  land,  coincide  with  those  applicable  to  marine  insurance ; 
but  the  specific  provisions  of  the  contracts  in  the  two  kinds  of 
insurance  differ  very  much.  In  some  fire,  as  in  most  marine  poli- 
cies, the  whole  written  contract  appears  in  the  instrument  sub- 
scribed by  the  Insurers  ;  but  most  of  the  former  refer  to  rules  and 
regulations,  conditions,  and  requirements,  indorsed  upon,  or  other- 
wise annexed  to  the  subscribed  instrument,  and  referred  to  in  it, 
and  so  the  mutual  stipulations  become  more  fully  a  part  of  the 
express  contract ;  being  thus  indorsed  or  annexed,  because,  in 
case  of  the  conditions  and  requirements  being  quite  various  and 
numerous,  as  they  are  in  many  of  the  forms  of  fire  policy,  they 
can,  in  this  manner,  be  more  conveniently  and  intelligibly  ex- 
pressed. 

Some  of  the  forms  in  use  by  stock  companies  have  no  such 
indorsements  and  references,  and  their  forms  are  not  found  to  be 
attended  by  any  inconvenience  on  that  account ;  but  the  policies 
of  mutual  companies  usually  consist  in  part  of  indorsed  or  annexed 
instructions  and  conditions,  and  this  form  is  preferable  for  such 
associations,  since  the  stipulations  referred  to  are  usually  the  pro- 
visions of  the  charters  of  the  company,  or  its  rules  and  regula- 
tions. 

Fire  policies  generally  include  the  following  particulars,^ 
namely  ; 

Names  of  the  parties  : 

Amount  insured  : 

The  premium  : 


1  Takon  frf»ni  ionm  in  Boston,  Hartford,  New  York,  Philadelphia,  Balti- 
more, and  Charleston. 


SECT.  VI.]  THE   PROVISIONS    OF   A    FIRE   POLICY.  45 

Period  of  the  risk,  for  a  specified  time  from  twelve  o'clock,  at 
noon,  on  a  certain  day,  like  marine  policies  on  time  : 

Descriptioti  of  (he  subject,  as  a  building,  situated  in  such  a 
place  ;  built  of  such  and  such  materials  ;  of  a  specified  value  ; 
how  occupied  ;  how  near  to  other  buildings,  or  what  others  are 
within  a  specified  distance,  and  what  kind  of  buildings,  and  how 
occupied  : 

If  on  goods,  what  kind  ;  in  what  buildings  kept,  with  a  descrip- 
tion of  the  building  and  situation,  as  in  case  of  a  policy  upon  the 
latter : 

The  interest  of  the  assured  in4he  subject,  if  he  he  not  absolute 
oivncr,  as  that  of  lessee,  depositary,  trustee,  agent  entitled  to  a 
commission,  or  insuring  for  his  own  benefit  or  that  of  his  principal, 
or  for  both.  The  rule  of  some  companies,  as  expressed  in  the 
indorsed  instructions  and  provisions,  is,  that  any  such  qualified 
interest  may  be  covered,  as  in  a  marine  policy,  by  the  phrase 
"for  whom  it  may  concern."  ^ 

Certain  articles,  as  books  of  account,  written  securities,  deeds, 
or  other  evidences  of  title  to  lands,  bonds,  bills,  notes,  and  other 
evidences  of  debt,  and  money  or  bullion,  are  excepted  from  the 
insurance. 

Others,  such  as  jewelry,  precious  stones,  watches,  plate,  medi- 
cal, musical,  and  scientific  instruments,  medals,  and  other  curiosi- 
ties, paintings,  prints,  engravings,  statuary,  and  sculpture,  are  usu- 
ally not  included,  unless  distinctly  specified. 

Valuation  is  made  of  articles  of  j^recarious  value  : 

If  no  valuation,  the  amount  of  loss  to  be  determined  by  the 
value  at  the  time  of  the  loss  : 

Exception  of  loss  by  lightning,  explosion  of  steam  or  gunpow- 
der, or  other  explosive  substances,  unless  the  article  insured  is  burnt : 

Exception  of  loss  by  fire  occasioned  by  invasion,  insurrection, 
riot,  civil  commotion,  or  military  or  usurped  power  : 

Condition  that  the  insurance  is  void  if  prior  insurance  is  not 
indorsed ;  or  subsequent,  forthwith,  or  as  soon  as  may  be,  or  within 
a  certain  time,  after  being  made. 

1  Delaware  Mutual,  Philadelphia. 


46  OF   THE    CONTRACT   OF   INSURANCE.  [CIIAP.  I. 

Or  if  any  trade  classed  as  hazardous  in  the  mernqrandum 
annexed  to  the  poHcy,  shall  be  carried  on  in  the  premises  insured, 
or  where  the  goods  insured  are  stored  ; 

Or  if  the  subject  or  jjolicy  shall  be  assigned  without  the  con- 
sent of  the  insurers  ; 

Or  if  the  rish  shall  be  increased  by  alterations  or  otherwise  by 
the  assured ; 

Or  in  case  of  fraud  or  false  swearing  on  the  part  of  the  assured. 

It  is  provided  in  some  policies  that,  where  there  is  other  insur- 
ance, all  the  insurers  are  to  pay  only  pro  rata  for  a  loss  : 

That  the  policy  may  be  continued  by  indorsements  to  that  effect :  ^ 

That  the  insurers  may  cancel  the  policy,  if  others,  by  erecting 
buildings  or  otherwise,  enhance  the  risk  :  ^ 

That  the  policy  is  not  binding  until  the  premium  is  paid  : 

That  the  assured  shall,  in  case  of  fire,  use  his  utmost  endeavors 
to  save  the  property  : 

That  on  a  loss  occurring,  the  assured  shall  forthwith  give  notice 
to  the  insurers,  make  out  an  account  under  oath  of  the  articles 
lost ;  produce  a  certificate  of  some  magistrate  that  he  believes  the 
assured  to  have  sustained  the  loss  and  acted  honestly  ;  and  shall 
produce  books,  bills,  and  schedules  relative  to  the  description, 
quantity,  and  value  of  the  property  lost  or  damaged  : 

That  the  insurers  may  replace  articles  lost  or  damaged,  by 
others  equivalent : 

That  a  loss  shall  be  payable  in  sixty  days  after  notice  and  proof: 

That  any  dispute  about  the  amount  of  loss  shall  be  settled  by 
appraisers. 

SECTION    VII.       THE    PROVISIONS    OF    A    LIFE    POLICY. 

64.  The  provisions  of  life  policies  are  much  fewer,  and  the 
forms  of  policy  more  simple  and  of  less  variety,  than  those  of 
commercial  and  fire  insurance. 

1  Blank  forms  far  continuance  of        ^  Some  forms  provide  that  such  en- 
tlic  policies  are  indorsed,  to  be  fdled  "  hancement  shall  be  at  the  risk  of  the 
up  from  time  to  time,  in  some  forms     insurers,  and  not  give  them  any  right 
of  fire   policies,  as   in   some  marine     to  cancel  the  policy, 
policies. 


SECT.  VII.]  THE   PROVISIONS   OF  A   LIFE   POLICY.  47 

A  life  policy  usually  contains  the  following  particulars,  namely : 

Names  of  the  parties,  and  for  whose  benefit  the  policy  is  made, 
if  not  for  that  of  the  party  procuring  the  insurance  : 

The  name  of  the  life  insured,  whether  the  assured  himself,  or 
his  debtor,  or  other  person  in  whose  life  he  is  interested  : 

The  premium,  usually  annual,  sometimes  a  single  premium  for 
the  whole  period  of  the  insurance  : 

The  amount  insured  : 

The  iicriod,  whether  for  life  or  a  term  of  years  : 

The  time  for  payment  of  a  loss,  usually,  as  in  other  insurance, 
in  sixty  days  after  notice  and  proof  of  the  loss  : 

The  condition  that  the  policy  shall  be  void  and  forfeited ; 

In  case  the  person  whose  life  is  insured  shall  die  at  sea,  some 
printed  forms  giving  liberty  of  certain  coasting  or  other  passages  : 

Or  pass  beyond  certain  latitudes  and  longitudes,  or  certain  ter- 
ritorial boundaries  ;  policies  in  the  Middle  and  Northern  States, 
usually  giving  liberty  of  residence  as  far  south  as  about  the  thirty- 
fifth  degree  of  north  latitude,  and  west  to  the  Rocky  Mountains, 
or  to  the  hundredth  degree  of  west  longitude,  or  to  the  Mississippi, 
or  thirty  or  forty  miles  west  of  it,  and  north  and  north-east  to  the 
extent  of  the  British  Provinces,  or  not  farther  northward  than  the 
forty-eighth  degree  of  north  latitude  ; 

Or  if  the  life  shall  be  south  beyond  the  specified  limit  from  the 
first  of  July  to  the  first  of  November ; 

Or  if  he  shall  enter  into  the  naval  service,  or  the  military,  other- 
wise than  that  of  the  militia  ; 

Or  die  by  his  own  hands,  or  by  the  hands  of  justice,  or  in  a 
duel,  or  in  consequence  of  a  violation  of  laiv  ; 

Or  if  any  of  the  statements  made  by  the  applicant  at  the  time 
of  procuring  the  policy,  and  as  the  basis  of  the  contract,  are  un- 
true ; 

Or  if  the  premium  shall  not  be  paid  at  the  time  specified. 

It  is  usually  stipulated  that,  in  case  of  forfeiture  of  the  policy, 
the  premiums  previously  paid  shall  be  forfeited ; 

And  in  some  policies,  that  notice  of  any  assignment  of  the 
policy  shall  be  given  to  the  underwriters. 

Various  liberties  are  inserted  in  these  policies,  according  to  the 


48  OF   THE   CONTRACT   OF   INSURANCE.  [CIIAP.  I. 

particular  circumstances,  such  as  to  travel  or  reside  beyond  the 
ordinary  limits ;  follow  the  sea ;  or  enter  into  the  military  or  naval 
service  ;  or  pursue  any  employment  prohibited  by  the  ordinary 
provisions  of  the  policy. 

SECTION    VIII.        WHAT     IS     COMPREHENDED     BY     THE     POLICY     AS 
BEING     A     PART     OF     IT. 

65.  The  principles  ivhereby  it  is  determined  tvhat  constitutes  a 
part  of  the  contract,  are  the  same  in  commercial,  fire,  and  life 
insurance. 

66.  The  correspondence  of  the  parties,  or  communications  be- 
tween them,  previously  to  executing  the  policy,  do  not  constitute 
a  part  of  the  contract,  to  the  same  effect  as  if  inserted,  unless 
incorporated  by  a  reference. 

Where  the  agent  of  the  owner  of  the  insured  property  left  a 
memorandum  at  the  office,  signed  by  himself,  "  that  the  policy 
was  to  take  effect,  if  no  insurance  should  be  made  by  the  owner 
elsewhere,"  which  was  shown  to  the  underwriters  at  the  time  of 
sifniinof,  and  the  owner  did  in  fact  make  insurance  abroad,  though 
not  to  the  full  value  of  the  property  ;  yet  this  memorandum  was 
held  not  to  be  any  part  of  the  contract,  and  could  not  be  taken 
advantage  of  by  the  underwriters  to  avoid  payment  of  a  loss. 
Chief  Justice  Parker,  giving  the  opinion  of  the  court,  said,  that 
"Policies,  though  not  under  seal,  have  nevertheless  ever  been 
deemed  instruments  of  a  solemn  nature,  and  subject  to  most  of  the 
rules  of  evidence  which  govern  in  the  case  of  specialties.  The 
policy  itself  is  considered  to  be  the  contract  between  the  parties, 
and  whatever  proposals  are  made,  or  conversations  had,  prior  to 
the  subscription,  they  are  to  be  considered  as  waived,  if  not 
inserted  in  the  policy  or  contained  in  a  memorandum  annexed 
to  it."i 

And  a  correspondence  concerning  an  insurance  previously  to 
making  it,  in  which  the  voyage  is  described,  will  not  control  the 


1  Iligginson  v.  Dall,  13  Mass.  llcp.  9G.    And  sec  1  Grcenl.  Ev.,  c.  15,  §  275, 
&c.,  p.  ;il5,  ike,  ed.  1812. 


SECT.  VIII.]      WHAT    IS    COMl'KEUENDED    BY    THE    POLICY.  49 

construction  of  the  policy  ;  ^  nor  will  a  paper  that  was  shown  to 
the  underwriters  at  the  time  of  signing,  in  which  the  number  of 
men  and  guns  on  board  was  stated,^  or  one  in  which  it  was  stated 
that  the  vessel  had  deviated  from  the  voyage  described  in  the 
policy  before  the  insurance  was  effected  ;'^  nor  are  words  spoken 
by  the  parties  at  the  time  of  signing  the  policy  of  the  same  effect 
as  if  they  had  been  inserted  in  the  policy  ;  as  where  the  under- 
writer at  the  time  of  signing,  said  he  would  not  be  held  if  the 
vessel  did  not  sail  by  a  certain  day,'*  and  where  a  broker  told  the 
underwriters  that  the  goods  were  not  on  board  of  a  certain  ship,^ 
and  where  the  assured  said  the  ship  was  American.^ 

Nor  is  evidence  admissible  to  prove  that,  where,  according  to 
the  construction  put  upon  a  policy  on  goods  from  L.  to  O.  it 
covered  goods  on  only  one  trip  of  a  steamboat,  the  president  of 
the  insurance  company  orally  agreed  that  the  insurance  should  be 
applied  to  shipments  on  two  successive  trips. '^ 

"No  instance  can  be  found,"  says  Parker,  C.  J.,  "where  the 
knowledge  of  the  underwriter  that  a  deviation  was  intended,  has 
been  set  up  as  an  excuse  for  such  deviation."  ^ 

Proof  of  a  statement  by  the  assured,  that  the  goods  at  risk  were 
memorandum  articles,  as  a  reason  for  a  lower  premium,  was  held 
in  New  York  not  to  be  admissible,  on  the  part  of  the  underwriter, 
to  show  that  they  were  to  be  brought  under  the  memorandum,  this 
being  a  mere  opinion  on  the  construction  of  the  terms  of  the  policy 
designating  those  articles,  the  meaning  of  which  terms  must  be 
regulated  by  the  usage.^ 


1  Vandervoote  v.  Smith,  2  Caines,  ^  Wliltney  et  al.  v.  Haven,  13  Mass. 
155  ;    Stevens   v.   Beverly  Ins.   Co.,  Rep.  172. 

S.  J.  C.  Mass.,  Essex,  Nov.  1822.     It  ^  Weston  v.  Ernes,  1  Taunt.  115. 

is,  however,  said,  in   one   case,  that  6  Atberton  v.  Brown,  14  Mass.  Rep. 

the  written  order  for  insurance  will  152. 

control  the  policy.    Norris  v.  Ins.  Co.  '^  Courtnay  v.  Miss.  Fire  and  Mar. 

of  N.   A.,   3  Yeates,   84,  for  which  Ins.  Co.,  12  La.  Rep.  233. 

1  Atk.  547,  is  cited.  8  Wiggin   et  al.  v.  Boardman,  14 

2  Pawson  u.  Barnevelt,  Doug.  12,  n.  Mass.  Rep.  15.     See  also  Weston  v. 

3  Relman  v.  Sowdon,  5  Taunt.  462  ;  Ernes,  1  Taunt.  115. 

1  Marsh.  Rep.  136  ;  3  Camp.  503.  9  Astor  v.  Union  Ins.  Co.,  7  Cowen, 
VOL.    I.                             5 


50  OF  THE  CONTRACT  OF  INBUKANCE.        [CHAP.  I. 

Evidence  of  an  oral  promise  by  the  assured  in  a  fire  policy,  that 
he  would  substitute  a  stove  for  an  open  fireplace  if  the  insurance 
should  be  made,  was  held  in  New  York  to  be  inadmissible,  on  the 
ground  that  its  admission  would  be  introducing  a  new  distinct 
stipulation  into  the  policy  ;  and  that  it  could  not  "avail  as  a  repre- 
sentation, because  it  was  not  the  statement  of  a  fact.^  This  rea- 
son is,  however,  not  good.^ 

But  where  the  assured  in  a  fire  policy,  in  his  application  for 
insurance,  stated  the  mode  of  conducting  business  and  precautions 
taken  to  guard  against  fire  in  the  building  to  which  the  policy 
related,  it  was  held  in  Massachusetts  that  he  was  bound  to  a  sub- 
stantial compliance  with  the  statement,  whereby  the  statement 
was,  in  effect,  construed  to  be  an  implied  condition,  or  promise, 
relative  to  the  risk  during  its  continuance.^ 

The  subsequent  oral  admissions  of  one  party  are  not  'permitted 
to  he  proved  hij  the  other  to  contradict  the  ivritten  contract,^  since 
this  would  give  them  the  same  effect  as  if  inserted  in  it. 

But  though  the  proposal  or  order  for  insurance,  or  a  paper 
shown  or  words  spoken  at  the  time  of  signing,  are  not  a  part  of 
the  contract,  to  the  same  effect  as  if  the  words  spoken  or  con- 
tained in  the  proposal  or  paper  shown,  had  been  inserted  in  the 
policy,  still  the  contract  may  be  affected  by  them,  if  they  are  such 
as  to  induce  the  underwriter  to  take  the  risk,  as  will  be  seen  under 
the  head  of  representation. 

202.     Accordingly,   the   position   re-  insured  against  were   not  enhanced 
ported   to   have   been  taken  by  the  by  taking  in  cargo,  but  the  decision 
Enf^lish   Court  of  Common  Pleas  in  -was  put  upon  a  Avrong  ground. 
one    case,   Urquhart    v.   Barnard,  4  i  Alston  v.  The  Mechanics'  Mutual 
Taunt.   450,   that   written   notice   of  Ins.  Co.,  4  Hill,  329. 
an    intention   to   take  in  cargo  at  a  ~  See  Infra,  No.  533. 
port  named  is  ccpilvalent  to  a  custom  3  Houghton  v.  Manuf.  Mutual  Fire 
so  to  do,  cannot  be  supported;  though  Ins.  Co.,  8  Mete.  111. 
such  a  notice  might  be  a  ground  for  4  Paine  v.  M'Intier,  1  Mass.  Rep. 
application  to  a  court  of  equity  to  re-  G9.     A  similar  admission,  was,  how- 
form  the  policy,  if  the  liberty  to  take  ever,  allowed  to  be  proved  on  a  ques- 
in  goods  were  omitted  inadvertently  tion  as  to  the  amount  of  damage  for 
and  through  misUikc.     The  case  was  breach  of  a  written  contract.    Leland 
rightly  decided,  as  It  apj)cared  that  v.  Stone,  10  Mass.  Hep.  459  ;  Town- 
no  delay  was  occasioned,  and  the  risks  send  v.  Weld,  8  Mass.  Rep.  146. 


SECT.  VIII.]      AVIIAT   IS    COMPREHENDED    BY   THE   POLICY.  51 

67.  The  stipulations  implied  by  the  language  of  the  policy  of 
insurance  are  as  much  a  part  of  the  instrument  as  any  of  its  ex- 
press provisions,  and,  therefore,  cannot  be  countervailed  by  proof 
of  oral  agreements,  understandings,  notices,  or  representations 
between  the  parties,  since  this  would  be  adding  to  or  abstracting 
from  the  written  contract. ^ 

68.  What  is  contained  in  the  policy,  or  other  instrument,  or 
written  upon  it,  purporting  to  belong  to  it,  at  the  time  of  signing, 
is  a  part  of  the  contract,  and  is  adopted  by  the  signature  ;  whether 
the  words  are  in  the  margin,^  or  written  transversely, ^  or  indorsed."* 

69.  A  provision  inserted  in  the  policy,  with  consent,  after  it  is 
subscribed,  is  part  of  it.^ 

70.  A  policy,  as  well  as  other  instruments,  may  refer  to  records, 
or  other  papers,  so  as  to  make  them  a  part  of  the  written  contract. 

Where,  in  a  policy  under  seal  against  fire,  the  insurers  agreed 
to  pay  the  loss,  "according  to  the  tenor  of  their  printed  proposals," 
and  it  was  objected  that  a  distinct  paper  could  not  be  thus  incor- 
porated into  a  sealed  instrument,  the  court  held  that  it  might  be 
so,  and  that  it  was  too  clear  to  admit  of  a  doubt.^ 

1  Creery  v.  Holley,  14  Wend.  25.  ^  Kenyoii  et  al.  v.  Berthon,  Doug. 
See  1  Greenl.  Ev.,  §  275  ;  2  id.  §  377,     12,  n. 

who  cites  Smith  w.  Wilson,  3  B.  &  Ad.        4  Mod.  Cas.  237,  cited  Jac.  L.  Die. 

728  ;  Hockin  v.  Cooke,  4  T.  R.  314  ;  tit.  Deed,  III. ;  Harris  v.  Eagle  F.  Ins. 

Attorney-General  v.  The  Cast  Plate  Co.,  5  Johns.  368,  though  the  words 

Glass    Co.,   2   Anstr.    39  ;    Sleght   v.  and  figures  indorsed  are  referred  to 

Khinelander,  1  Johns.  531 ;   Frith  v.  in  the  poHcy  in  this  case;  Warwick  v. 

Barker,    2  Johns.   327  ;    Stoever  v.  Scott,  4  Camp.  62,  where  the  regula- 

Whitman,   6    Binn.   417;    Henry   v.  tions  of  the  insurance  company,  and 

Risk,  1   Dall.   265  ;   Doe  v.  Lea,  11  the  conditions  on  which  they  insured, 

East,  312.     Whatever   is  fairly   im-  were  indorsed.     And  see  Stocking  v. 

plied  by  the  language  of  the  policy  Fairchild,  5  Pick.  181;  Gould  v.  Gould, 

is  part  of  it.     Per  Bronson,  J.,  Potter  4  N.  Hamp.  Rep.  173.    The  terms  and 

V.  Ont.  &  LIv.  Mut.  Ins.  Co.,  5  Hill,  conditions  of  fire  policies  are  usually 

147.  indorsed  and  referred  to  in  the  policy. 

2  Cockran  v.  Retberg  et  al.  3  Esp.  Duncan  v.  The  Sun  Fire  Ins.  Co.,  6 
121 ;  De  Hahn  v.  Hartley,  1  T.  R.  343  ;  Wend.  488. 

Guerlain  v.  Col.  Ins.  Co.,  7  Johns.  527,  5  Jenks  v.  Hallet,  1  Caines,  60. 

but  the  margin  is  referred  to  in  the  6  Routledge  v.  Burrell  et  al.  1  H.  Bl. 

policy  ;   Bean  v.  Stupart,  Doug.  11  ;  254  ;  and  see  Oldman  v.  Bewicke,  2 

Ewer  V.  Washington  Ins.  Co.,  16  Pick.  H.  Rl.  577,  n. ;  Wood  et  al.  v.  Wors- 

502.  ley,  2  H.  Bl.  574  ;  Worsley  v.  Wood, 


52 


OF   THE    CONTRACT   OF   INSURANCE. 


[CUAP.  I. 


A  written  representation  or  document  may  be  referred  to  in  the 
policy  to  the  same  effect  as  if  inserted  in  the  body  of  it,  and  thus 
be  made  a  part  of  it,  and  accordingly  become  a  warranty  of  the 
facts  stated  in  it,  or  other  stipuhition  or  condition  eq^ually  obliga- 
tory with  the  policy  itself.  The  rules  and  regulations  of  an  insur- 
ance company  are  frequently  so  referred  to  in  marine  and  fire 
policies,  more  especially  those  of  mutual  insurance  companies.^ 
The  effect  of  such  reference  must,  however,  depend  on  the  man- 
ner and  object  of  making  it.^ 

71.-4  paper  annexed  to  ike  policy  at  the  time  of  its  delivery, 
and  purporting  to  belong  to  if,  is  part  of  it,  if  so  intended,  though 
not  expressly  referred  to  in  it.^ 

But  in  case  of  a  document  delivered  with  the  policy,  and  not 
referred  to  in  it,  though  it  is  presumed  to  be  part  of  the  policy  if 
it  so  purports,  yet  this  presumption  may  be  rebutted  by  evidence 
that  it  was  so  delivered  by  mistake.^ 

72.  Where  a  document  referred  to  in  a  policy  for  a  description 
of  the  subject,  states  facts  not  material  to  the  risk,  the  reference 
does  not  amount  to  a  warranty  of  such  facts  ;  as  where  the  policy 
was  on  premises  described  in  it  and  said  in  the  policy  to  be  "more 


6  T.  R.  710;  Tarleton  et  al.  v.  Stani- 
fortb  et  al.,  5  T.  R.  695  ;  S.  C.  1  B.  & 
P.  471 ;  3  Anstr.  707. 

1  Clark  V.  Manufacturers'  Ins.  Co., 
8  Howard,  235,  where  the  represent- 
ations referred  to  in  a  fire  policy 
were  those  of  a  previous  assured ; 
Jennings  v.  Chen.  Mut.  Ins.  Co.,  2 
Denio,  75 ;  Burritt  v.  Saratoga  Mut. 
Fire  Ins.  Co.,  5  Hill,  188,  where  the 
reference  was  for  a  description  of  the 
property  insured  ;  and  Kentucky  and 
Louisville  Ins.  Co.  v.  Southard,  8  B. 
Monroe,  63G,  also  a  reference  for  de- 
scription ;  Trench  v.  Chenango  Mut. 
Ins.  Co.,  7  Hill,  122,  reference  to  the 
sL'itcnientof  the  flistanceof  the  insured 
building  from  others  ;  and  see  Mary- 
land   Ins.  Co.  V.  Bossicrc,    0    (Jill    k 


Johns.  121  ;  Stewart  v.  Wilson,  12 
Mees.  &  W.  11,  a  case  of  reference  to 
a  rule  of  a  mutual  marine  company, 
making  a  condition  for  repairs  and 
outfits  to  be  ordered  by  a  committee- 
See  also  Kennedy  v.  St.  Lawrence 
county  Mut.  Ins.  Co.,  10  Barb.  Supr. 
Ct.  Rep.  (N.  Y.)  285. 

2  Burritt  v.  Saratoga  Mutual  Fire 
Ins.  Co.,  5  Hill,  188  ;  and  see  Mary- 
land Ins.  Co.  V.  Bossiere,  9  Gill  & 
Johns.  121. 

3  ]\Iurdock  V.  Clicnango  Mut.  Ins. 
Co.,  2  Comstock,  210;  a  condition 
was  subjoined  on  the  same  sheet.  So 
also  Roberts  t'.  Chenango  Mut.  Fire 
Ins.  Co.,  3  Hill,  501. 

4  Roberts  v.  Chenango  Mut.  Fire 
Ins.  Co.,  3  Hill,  501. 


SECT.  VIII.]      WHAT   IS    COMPREHENDED    BY   THE   POLICY.  53 

particularly  described  in  the  application  and  survey  furnished  by 
the  assured,  No.  938,  in  the  office  of  the  underwriters,"  it  was 
held  by  the  Supreme  Court  and  Court  of  Errors  of  New  York, 
not  to  be  a  warranty  that  all  the  facts  stated  in  the  application 
and  survey,  material  or  not  material  to  the  risk,  were  strictly  and 
literally  as  stated,  but  that  it  was  enough,  if  they  were  substan- 
tially correct,  that  is,  correct  so  far  as  they  were  material  to  the 
risk.  Therefore,  though  the  survey  stated  that  a  partition  extended 
up  to  the  roof,  which  did  not,  in  fact,  extend  so  high,  yet,  as  the 
jury  found  the  variance  not  material,  it  was  held  that  the  policy 
was  not  thereby  defeated. ^ 

The  written  proposals  for  previous  policies  on  the  same  subject 
were  referred  to,  "loss  to  be  paid  to  C.  as  described  in  report 
No.  193."  Some  immaterial  alteration  had  been  made  in  the 
mean  time,  so  that  the  building  did  not  precisely  conform  to  the 
report :      Held  not  to  affect  the  validity  of  the  policy.^ 

Insurance  against  fire  was  made  on  three  tenements  in  Mobile, 
"  per  report  No.  36,  748,  filed  in  the  Washington  office."  When 
application  for  insurance  was  made  at  the  Washington  office,  the 
assured  had  given  a  plan  of  the  buildings  insured,  and  the  adjoin- 
ing buildings  and  ground.  The  buildings  occupied  a  corner  of  a 
square,  and  the  ground  in  the  rear  of  them  was  represented  as 
being  vacant.  It  does  not  appear  that  this  plan  was  included 
in,  or  how  particularly  it  was  connected  with,  the  report  referred 
to.  The  insurers  contended,  that  this  plan  was  by  such  reference 
made  a  part  of  the  policy,  and  constituted  a  warranty  that  the 
adjoining  ground  was  vacant  at  the  time  of  making  the  insurance, 
and  should  continue  to  be  so  during  the  risk.  But  it  was  held  not 
to  be  such  a  warranty .^ 

Where  two  policies  were  made  on  interest  in  freight  at  the  same 
office,  one  by  the  owner,  the  other  by  the  charterer,  reference  to 


1  Snyder  v.  Farmers'  Ins.  &  Loan  2  Jefferson  Ins.  Co.  v.  Cotlieal,  7 

Ins.  Co.,  13  Wend.  92;  Farmers'  Ins.  Wend.  72. 

&   Loan   Co.   v.  Snyder,  16   Wend.  3  gtebbins  v.  Globe  Ins.  Co.,  2  Hall, 

481.  632. 
5* 


54  OP  THE   CONTRACT    OF   INSURANCE.  [CIIAP.  I. 

one  was  allowed  by  the  court  to  explain  the  other  ;i  though  no 
such  reference  was  made  in  the  policies  to  be  explained. 

73.  Verbal  declarations  even  may,  by  a  provision  in  the  policy, 
be  made  to  form,  directly,  a  part  of  the  contract ;  as  where  the 
policy  is  on  goods,  "  thereafter  to  be  declared,"  the  subsequent 
declaration  of  the  assured,  though  not  made  in  writing,  will  deter- 
mine the  subject  to  which  the  policy  is  to  attach.  And  the 
assured,  having  made  a  declaration,  by  mistake,  that  the  goods 
were  on  board  of  a  certain  ship,  on  board  of  which  he  had  no 
goods,  was  permitted  to  make  a  second  declaration.  Lord  Ellen- 
borough  said,  it  was  a  " corrigible  mistake,"  and  that  "the  first 
declaration  did  not  form  any  part  of  the  contract."  ^  This  is  a 
special  exception  to  the  general  rule  already  laid  down  ;  or  rather 
it  is  a  written  agreement  to  abrogate  that  rule  in  the  particular 
case. 

SECTION    IX.       RENEWAL    OF    THE    CONTRACT. 

74.  Policies,  whether  commercial  or  against  fire  or  on  a  life, 
sometimes  contain  a  provision  for  renewal  or  continuance,  by  the 
payment  of  the  premium  within  a  certain  time,^  or  on  some  other 
condition. 

It  was  agreed  in  a  life  policy  by  a  society  for  mutual  insurance, 
that,  if  the  assured  should  pay,  or  cause  to  be  paid,  the  premium 
on  certain  days  quarterly  during  his  life,  "or  within  such  time 
after  those  days  respectively  as  was  or  should  be  allowed  for  that 
purpose  by  the  rules  of  the  society  ;  and  if  he  would  pay  his  pro- 
portion of  the  moneys  which  the  members  should,  during  his  life, 
be  called  on  to  contribute,  according  to  the  rules,  towards  making 
good  any  deficiency  of  the  funds  of  the  society  to  answer  the 
claims  upon  it,"  then  on  his  death  the  society  should  pay  to  his 
widow,  in  case  she  should  survive  him,  a  certain  annuity. 


1  Etches  V.  Aldan,  1  Mann.  &  Ryl.  3  Tarleton  v.  Staniforth,  5  T.  R. 
157  ;  17  Serg.  &  Lowb.  229.  695  ;  S.  C.  1  B.  &  V.  471 ;  3  Anst. 

2  llobinson  v.  Touray,  3  Camp.  158;  707. 
1  M.  &  S.  217. 


SECT.  IX.]  RENEWAL    OF   THE   CONTRACT.  55 

By  the  rules  of  the  society,  if  any  "member"  neglected  to  pay 
the  quarterly  premiums  for  fifteen  days  after  the  same  became  due, 
the  policy  was  to  be  void,  unless  the  "member"  (continuing  in  as 
good  health  as  when  the  policy  expired)  "should  pay  up,  within 
six  months  then  next,  all  arrears,  together  with  five  shillings  for 
every  month  elapsed  after  such  premium  became  due." 

The  quarterly  premiums  were  regularly  paid  previously  to  the 
one  becoming  due  on  the  20th  of  December,  1808.  The  assured 
died  on  the  25th  of  December,  without  having  paid  or  tendered 
the  premjum.  On  the  27lh  of  the  same  December,  the  quarterly 
premium  was  tendered  to  the  society  by  his  executors. 

Lord  EUenborough  and  his  associate  judges  held,  that  the  privi- 
lege of  paying  the  premium  within  fifteen  days  from  the  end  of  a 
preceding  quarter  belonged  exclusively  to  the  assured  himself,  who 
was  a  member  of  the  society,  and  not  to  his  widow  or  representa- 
tives, and,  in  support  of  this  position,  referred  to  the  provision  for 
an  assessment,  saying,  if  the  policy  could  be  kept  alive  by  the 
survivors,  then  this  provision  would  be  in  effect  cancelled,  as  there 
would  be  a  subsisting  policy  on  which  an  assessment  could  be 
made.     The  judgment  was  accordingly  against  the  claimants.^ 

By  a  policy  of  a  mutual  company  against  fire,  it  was  stipulated, 
that  the  assured  should  pay  the  premium  for  a  certain  time,  "and 
should,  as  long  as  the  managers  should  agree  to  accept  the  same, 
make  payments  annually,  within  fifteen  days  after  the  time  limited 
by  the  policy,  upon  forfeiture  thereof,  and  that  no  insurance  should 
take  place  until  the  premium  should  be  paid."  The  policy  was 
for  six  months,  and  expired  before  the  premises  were  consumed 
by  fire.  The  assured  tendered  the  premium  after  the  fire,  within 
fifteen  days,  which  the  society  refused  to  accept.  Lord  Kenyon, 
C.  J. :  "It  was  adn)itted  by  the  plaintiff,  that  the  insurance,  when 
made,  did  not  extend  to  a  half-year  and  fifteen  days.  If,  when 
the  first  premium  was  paid,  the  insurance  did  not  extend  to  fifteen 
days  beyond  this  half-year,  the  continuation  of  the  term  depends 
on  two  circumstances,  that  the  assured  should  pay  the  premium 
and  the  insurers  agree  to  accept  it."    Ashhurst,  J. :  "The  assured 

1  Want  V.  Blunt  et  al.  12  East,  183. 


56  OF   THE   CONTRACT   OF   INSURANCE.  [CHAP.  I. 

are  at  their  own  risk  during  this  interval  ;"  if  any  accident  happen 
before  the  premium  is  paid,  they  stand  uninsured.^ 

Under  a  policy  containing  the  same  provision,  the  insurance 
company  gave  notice,  that  they  would  not  continue  it  without  an 
increase  of  premium,  to  which  the  assured  replied,  that  they  would 
not  give  any  additional  premium.  Within  the  fifteen  days,  the  insured 
building  was  burnt  down,  and  the  assured  tendered  the  premium 
which  had  been  demanded,  which  the  company  refused  to  accept. 
Lord  Ellenborough  and  his  associates  held,  that  if  the  assured  had, 
by  the  terms  of  the  contract,  the  right  to  continue  the  insurance  by 
payment  of  the  premium  within  the  fifteen  days,  their  tender  would 
have  entitled  them  to  recover  the  loss.  But  as  the  underwriters 
had  the  right  to  terminate  it  at  the  end  of  the  specified  term,  and 
had  elected  so  to  do,  unless  the  assured  should  agree  to  pay  a 
higher  premium,  which  they  declined  to  do,  the  insurance  was 
terminated  at  the  end  of  that  term.^ 

75.  If  the  policy  contains  no  provision  for  renewal  by  some 
act  of  the  assured,  it  requires  a  written  agreement  of  the  under- 
writer to  renew  it  after  its  termination,^  except  in  case  of  termina- 
tion by  forfeiture  of  a  condition  within  the  stipulated  period  of  the 
risk,  in  which  case  it  may  be  continued  in  force  by  some  trans- 
action between  the  parties,  amounting  to  a  waiver  of  the  forfeiture 
on  the  part  of  the  underwriters. 

A  policy  for  ^1,800  on  a  building  and  ^700  on  machinery, 
being  continued  for  ^2,500  on  the  building  and  machinery  with- 
out any  apporiionment  of  the  amount,  was  held,  in  New  York,  to 
be  applicable  to  the  two  subjects  indiscriminately.'* 

1  Tarleton  et  al.  v.  Staniforth  et  al.,  expiration  of  their  policies.     Hughes, 

5  T.  K.  695  ;   S.  C,  1  B.  &  P.  471 ;  508. 

Anstr.  707.     In  consequence  of  this  2  Salvin  et  al.  v.  James  and  Lang- 
decision,  sundry  offices   gave   public  ston,  6  East,  571. 
notice,  that  persons  insured  by  poll-  "^  Cockerell  v.  Cincinnati  Ins.  Co., 
cies  taken  out  for  one  year  or  longer  16  Ohio  Rep.  149. 
were   considered   as   insured  for  fif-  *  Driggs  y.  Albany  Ins.  Co.,  10  Barb. 
teen   days   beyond   the   time  of  the  S.  C.  Hep.  440. 


SECT.  X.]  ASSIGNMENT   OP   THE  POLICY.  57 


SECTION    X.       ASSIGNMENT    OF    THE    POLICY. 

76.  Policies  of  insurance  in  their  usual  form,  wlietlier  marine, 
fire,  or  life;  are  not  negotiable  nor  subject  to  be  assigned,  without 
the  consent  of  the  insurers,  so  as  to  give  tlie  assignee  a  right  to 
prosecute  claims  upon  them,  in  his  own  name,  as  he  may  on  an 
assigned  bill  of  lading.^ 

M.  Alauzet^  says,  that  under  the  French  law  nothing  prevents 
a  marine  policy  being  made  payable  to  order  or  bearer.  And 
Mr.  Duer^  is  of  opinion,  liiat  a  marine  policy  would  be  transfer- 
able so  as  to  authorize  a  demand,  and  suit  upon  it,  in  the  name  of 
the  assignee  of  both  the  policy  and  its  subject,  without  the  consent 
of  the  insurer.  A  marine  policy  "  for  account  of  whom  it  may  con- 
cern at  time  of  loss,"  is  an  instance  of  an  insurance,  transferable 
with,  and  as  incidental  to,  the  subject,  according  to  the  terms  of 
the  policy  itself.  And  Chancellor  Walworth,  of  New  York,  held 
the  insurers  on  a  steamboat  to  be  answerable  in  equity  according 
to  the  purport  of  the  policy,  saying  at  the  same  time,  that  he  did 
not  intend  to  give  any  opinion  respecting  a  suit  at  law.'*  Mr. 
Duer^  considers  the  contract,  being  a  marine  one,  and  coming 
within  the  law  merchant,  not  to  be  subject  to  the  common-law 
rule  respecting  the  assignment  of  choses  in  action. 

A  marine  policy  of  insurance  on  goods  seems  to  be  precisely 
similar  to  a  bill  of  lading  as  to  its  assignableness,  provided  it  im- 
ports on  its  face  a  responsibihty  directly  to  the  assignee  of  the 
goods,  and  I  accordingly  venture  to  state  it  as  the  better  doctrine, 
that  the  interest  in  a  marine  policy  purporting  on  its  face  to 
insure  the  owner  of  the  goods,  whoever  he  may  be,  is  assignable 
with  the  goods,  to  the  effect  of  giving  the  assignee  a  right  to 
malce  demands  and  bring  suits  upon  it  in  his  own  name.  And 
the  same  doctrine  is,  I  think,  applicable  to  a  similar  policy  upon 

1  Carroll  v.  Boston  Mar.  Ins.  Co.,  4  Rogers  v.  Traders'  Ins.  Co.  and 
8  Mass.  Rep.  515.  same  plaintiff  v.  The  Howard  Ins.  Co., 

2  Vol.  I.  p.  360,  §192.  6  Paige  583. 

3  Mar.  Ins.  Vol.  II.  pp.  51,  52,  §  9,  5  Marine  Insurance,  Vol.  II.  p.  51,  n. 
§32. 


58  OF   THE   CONTRACT   OF   INSURANCE.  [CHAP.  I. 

a  vessel,  or  one  against  fire  upon  land,  for  though  the  personal 
confidence  of  the  underwriter  in  the  assured  is  greater  in  such  a 
policy  than  in  one  on  a  cargo,  still  I  am  not  aware  of  any  princi- 
ple of  law  inconsistent  with  his  using  his  own  discretion  in  this 
case,  so  far  as  to  make  his  contract  pass  with  the  subject.^ 

77.  Where  the  insured  interest  is  assignahle,  whether  in  a 
marine,  fire,  or  life  insurance, .the  policy  is  assignahle  in  equity 
to  the  assignee  to  whom  the  subject-matter  or  interest  thereby 
insured  is  assigned,  provided  it  contains  no  provision  to  the  con- 
trary.- 

If  a  contract  is  mutually  executory,  or  executory  on  one  part, 
and  imports  personal  confidence  and  trust,  as  in  contracts  for  labor 
or  professional  service,  a  party  by  whom  the  service  is  to  be  per- 
formed, and  in  whom  personally  a  trust  is  reposed  respecting  the 
manner  of  executing  the  contract,  cannot,  by  an  assignment,  sub- 
stitute another  in  his  place,  since  he  does  not  in  this  way  furnish 
to  the  other  party  what  was  agreed  for.  The  doctrine  of  the 
assignableness  of  policies,  therefore,  proceeds  on  the  presumption 
that  no  personal  confidence  is  reposed  in  the  skill  of  the  assured, 
in  respect  to  the  conducting  of  the  voyage.  But  it  does  not  fol- 
low that  this  presumption  is  conclusive.  On  the  contrary,  it  is 
easy  to  imagine  the  sti[iulations  of  a  policy  to  be  such  as  to  import 
the  confidence  of  the  underwriter  in  the  assured  personally  ;  in 
which  case  the  voluntary  substitution  of  another,  by  the  transfer 
of  the  interest,  and  the  management  and  control  of  the  subject, 
would  be  such  a  change  of  the  risk  as  to  discharge  the  under- 
writer. 

78.  The  doctrine  was   early  laid   down    by  Lord   Chancellor 


1  In  Weston  v.  Pcnniman,  1  Mason,  rica,  1  Binn.  429  ;  S.  C,  Condy's 
306,  Judge  Story  decided  that  an  March,  287,  n. ;  Delany  v.  Stodart, 
assignee  of  a  draft  not  negotiable,  and  1  T.  R.  22  ;  Marsh.  Ins.  800  ;  Ashley 
accepted  "to  pay  any  one  to  whom  it  v.  Ashley,  3  Sim.  151  ;  Wakefield  v. 
should  be  assigned,"  could  sue  in  his  Martin,  3  Mass.  Rep.  558;  De  Ghetoft 
own  name.  v.  London  Ass.  Co.,  Moseley,  83,  and 

2  Gourdon  v.  Ins.  Co.  of  N.  Ame-  see  1  Atk.  547  ;  Earlc  v.  Shaw,  1 
rica,  3  Yeatcs,  327  ;    S.  C,  1   Binn.  Johns.  Cas.  313. 

430  ;  Uoiisset  v.  Ins.  Co.  of  N.  Ame- 


SECT.  X.]  ASSIGNMENT   OF   THE   POLICY.  59 

King,  that  a  fire  policy  canpot  be  assigned  pending  the  risk  so 
as  to  give  any  interest  in  it  whatever,  legal  or  equitable,  to  the 
assignee.^ 

And  the  san)e  doctrine  is  countenanced,  though  not  directly 
declared,  by  Lord  Chancellor  Hardwicke.''^  But  Mr.  Ellis ^  im- 
plies that  a  Jirc  policy,  containing  no  provision  or  implication  to 
the  contrary,  is  assignable  in  equity  ivith  the  subject  itself,  on 
notice  being  given  to  the  insurers. 

78  a.  An  insurance  company  cannot,  by  reinsurance^  turn  an 
assured  over  to  the  reinsurers  without  his  consent. 

Where  an  insurance  company,  to  which  a  policy  issued  by  it 
is  assigned  to  it  by  the  insured  life,  as  collateral  security  for  the 
assured's  bond  for  money  loaned  to  him  by  the  company,  it  was 
decreed  by  Kindersley,  V.  C,  that  the  company  could  not,  by 
assigning  the  bond  to  another  company,  and  effecting  reinsurance 
on  the  life  with  such  other  company,  disengage  itself  from  its  own 
liability  to  the  representatives  of  the  assured  on  its  policy.^ 

79.  A  life  policy  in  favor  of  a  creditor  or  other  assured,  hav- 
ing an  assignable  interest  depending  upon  another's  life,  either 
partially  or  entirely,  or  one  on  which  the  premium  for  the  whole 
life  has  been  paid,  stands  upon  the  same  footing  as  to  the  assign- 
ment of  the  policy  with  the  interest  upon  which  it  is  made,  as  one 
against  marine  or  fire  risks,  and  may  upon  the  same  principle,  be 
transferred  with  the  debt  or  other  interest,  which  constitutes  its 
subject-matter. 

In  England  life  policies  for  an  annual  premium  on  the  assured's 
own  life  or  those  on  another^s  life,  upon  an  interest  that  is  not 
assignable,  for  instance  on  the  life  of  a  relative  upon  whose  bounty 
the  assured  depends,  appear  to  be  equally  assignable  with  those 
made  upon  an  interest  which  is  of  a  transferable  character. 

A  party  whose  life  was  insured,  assigned  and  delivered  his  policy 
to  one  of  his  creditors  as  collateral  security,  ordering  the  surplus 

1  Lynch  u.  Dalzell,  4  Bro.  P.  C.  431,  4  Atkinson  v.  Gylby,  13  Eng.  Law 
Toml.  ed.  and  Eq.  Rep.,  (Press  of  Little,  Brown 

2  Saddlers'  Co.  v.  Badcock,  2  Atk.  &  Co.)  209  ;  S.  C.  21  Eng.  Law  J.  Rep. 
554.  (n.  s.)  Chancery,  848. 

3  Insurance,  70. 


60  OF   THE   CONTRACT    OF   INSURANCE.  [CIIAP.  I. 

of  the  proceeds,  if  any,  after  satisfying  his  debt  out  of  other  secu- 
rity and  the  proceeds  of  the  policy,  to  be  paid  over  to  his  widow, 
intending  that  she  should  have  the  benefit  of  the  policy  in  prefer- 
ence to  his  creditors.  The  amount  insured  being  paid  over  to  the 
assignee,  Mr.  Chancellor  Johnson,  of  Maryland,  decreed  that,  the 
creditor,  after  retaining  enough  to  satisfy  his  demands,  first  apply- 
ing his  other  collateral  security  for  that  purpose,  should  pay  over 
the  surplus  to  the  widow,  and  rejected  the  claim  of  the  assured's 
administrator  to  an  interest  in  the  policy. ^ 

Mr.  Ellis  ^  is  in  favor  of  a  still  greater  latitude  in  the  assignment 
of  life  policies,  and  thinks  that  they  should  be  assignable  without 
notice  to  the  insurers.  His  reason  is,  that  these  policies  are  much 
used  as  a  means  of  credit,  and  he  supposes  it  to  be  desirable,  on 
the  part  of  the  holders,  to  be  able  to  assign  without  a  publicity 
that  might  impair  their  credit.  This  does  not,  however,  seem  to 
be  a  very  strong  reason  for  a  distinction  between  the  assignment 
of  such  a  policy  and  any  other.  On  the  contrary,  the  preventing 
of  a  false  credit  is  a  reason  in  favor  of  the  publicity. 

An  exceedingly  indulgent  construction  in  favor  of  the  sufficiency 
of  an  insurable  interest  in  a  life,  and  in  favor  of  the  assignableness 
of  life  policies  not  based  upon  a  substantive,  distinct,  valuable, 
appreciable,  insurable  interest,  tends  to  convert  such  contracts 
into  gaming  policies.  Such  a  use  of  these  insurances  is  subject  to 
as  great,  at  least,  if  not  greater,  objections,  than  other  species  of 
gambling.  For  this  reason,  and  for  others  relative  to  the  influence 
on  morals  and  a  temptation  to  crimes,  life  policies  ought  to  con- 
tain provisions  requiring  notice  of  assignments  to  be  given  to  the 
insurers,  and  allowing  to  them  the  election,  either  to  assent  to  the 
assignment,  or  to  redeem  the  policy  upon  reasonable  terms. 

80.  Policies  are  usually  assigned  in  writing,  hut  a  merely  ver- 
bal assignment,  with  delivery  of  the  policy,  gives  to  the  assigjiee 


1  Harrison  v.  M'Conkey,  1  Mary-  5  Gill  &  Johns.  54,  on   tlie    ground 

land  Chan.  Dec.  31.     The  chancellor  that  the  assured  had  divested  himself 

distinguishes  this  case  from  Penning-  of  all  interest  in  the  policy  and  all 

ton    Adm'r  v.  Getlings   Kx'r,  2  Gill  control  of  it. 

&  Johns.  208,  and  Bradley  c.  Hunt,  2  insurance,  152,  153. 


SECT.  X.]  ASSIGNMENT    OF    THE    POLICY.  61 

an  equitable  right  to  the  proceeds,  where  the  policy  itself  contains 
no  provision  to  the  contrary.^ 

8 1 .  After  a  valid  assignment  and  delivery  of  the  policy  to  the 
assignee,  and  notice  to  the  underwriters,  the  assignor  cannot,  by 
any  act  of  his,  intercept  or  impair  the  rights  of  the  assignee  under 
the  assignment.  An  assignment  to  a  subsequent  assignee,  with 
notice  of  the  prior  assignment,  will  be  subject  to  it ;  and  the  under- 
writers, after  notice  of  a  valid  assignment,  tvill  be  bound  by  it, 
and  any  payment  made  by  them  inconsistent  with  it  will  be  in 
their  own  wrong.^ 

82.  The  legal  proceedings  on  an  assigned  policy,  in  common- 
law  courts,  iuust  be  in  the  name  of  the  original  assured,  whom  the 
underwriter  has  a  right  to  regard  as  his  contracting  party,  and  the 
assured  cannot,  ivithout  the  consent  of  the  underwriter,  impose 
upon  him  any  responsibility  to  a  third  person,  whereby  the  rights 
of  the  underwriter  will  be  impaired,  or  his  liability  enhanced  ;  or 
will  be  modified  in  any  respect,  any  further  than  to  put  him  under 
obligation,  after  notice,  to  be  accountable  to  the  assignee  for  the 
amount  for  which  he  is  liable  under  the  policy.  In  other  words, 
the  underwriter  is  not  to  be  put  in  a  worse  condition  without  his 
own  consent.  Whatever  set-off  he  was  entitled  to  at  the  time  of 
notice  of  the  assignment,  and  whatever  other  defence  he  could 
make  against  the  original  assured,  he  may  still  malie,  notwith- 
standing the  assignment  to  himself.^ 

1  Per  Lord  Abinger,  C.  B.,  and  Dennis,  1  Fairfield,  244 ;  Matthews 
Parkes,  B.,  11  Mees.  &.  Wels.  10;  t'.  Houghton,  id.  420 ;  Frear  u.  Evert- 
Wells  V.  Archer,  10  Serg.  &  R.  412.  son,  20  Johns.  142 ;  Traders'  Ins.  Co. 
So  a  promissory  note,  payable  to  order,  v.  Robert,  9  Wend.  404  and  474. 

has  been  held  in  Maine  to  be  assign-  Where  the  payee  of  a  promissory 

able  in  equity  by  parol  and  delivery  note  not  negotiable,  gave  the  maker 

merely.  Titcomb  v.  Thomas,  5  Greenl.  a  discharge  at  the  time  of  its  being 

282  ;  andsee  Vose  v.  Handy,  2  Greenl.  made,  and  then  assigned  it,  for  a  va- 

322.  luable  consideration,  with  intent,  by 

2  See  2  Duer,  Ins.,  Lect.  9,  §  36,  the  parties,  to  defraud  the  assignee, 
and  cases  there-  cited  in  notes ;  also  the  latter  was  held  not  to  be  affected 
1  Greenl.  Ev.  §  190;  Daniel,  Eq.  Pr.,  by  the  discharge.  Lyon  v.  Summers, 
by  Perkins,  248,  n. ;  and  Hackett  v.  7  Conn.  Rep.  399. 

Martin,  8  Greenl.  Rep.  77;  Hatch  v.        ^  See  Gourdon  v.  Ins.  Co.  of  North 
VOL.    I.  6 


62  OF   THE   CONTRACT    OF   INSURANCE.  [CHAP.  I. 

83.  If  the  underwriter  has  agreed  to  account  and  make  pay- 
ment  to  an  assignee,  the  latter  may,  at  the  common  law,  commence 
proceedings  in  his  own  name,  where  nothing  remains  to  be  done 
on  the  part  of  the  assignor ;  and  all  his  interest  in  the  contract 
has  ceased.^ 

84.  If  the  assignment,  taken  in  connection  with  the  policy, 
plainly  transfers  the  assured^s  whole  interest,  the  underwriter'' s 
assent  to  it  is  evidently  equivalent  to  his  agreement  to  be  directly 
anstverable  to  the  assignee.  In  such  case,  the  proceedings  to 
enforce  payment  may  be  in  the  assignee's  name,  and  he  becomes 
to  all  intents  and  purposes  the  substituted  party  to  the  contract. 

This  and  the  preceding  proposition  are  stated  as  the  result  of 
the  jurisprudence  on  the  subject,  and  as  reconciling  the,  in  some 
degree,  apparently  discordant  decisions.  The  cases  on  policies, 
no  less  than  on  other  contracts,  support  the  doctrine,  that  an 
agreement  by  the  obligor  to  be  answerable  to  the  assignee,  or  his 
assent  to  an  assignment  of  such  import,  substitutes  the  assignee 
for  the  assignor,  and  authorizes  proceedings  in  the  name  of  the 
assignee  ;  ^  while  in  other  cases,  not  discriminating  the  above- 
mentioned  difference  in  assignments  and  assent,  the  general  rule  is 
differently  laid  down.^ 

An  assignment  may  transfer  only  a  part  of  the  claims  accruing 
to  the  assured  on  the  policy,  as  in  case  of  an  assignment  of  all 
claims  for  loss  under  a  marine  policy  to  the  vendee  of  the  goods 
thereby  insured,  which  is  held  by  Lord  Campbell,  C.  J.,  of  the 
English  Queen's  Bench,  and  his  associates,  and  by  Jervis,  C.  J., 
Pollock,  C.  B.,  and  their  associates,  Piatt,  Cresswell,  Parke,  Wil- 
liams, and  Martin,  of  the  English  Exchequer  Chamber,  not  to 
transfer  to  the  assignee  the  claim  for  a  return  of  any  part  of  the 
premium  previously  paid  by  the  assignor.'* 

America,  3  Ycatcs,  327 ;  S.  C.  1  Bin.  9  Carroll  v.  Boston  Mar.  Ins.  Co., 

430 ;  lloussct  v.  Ins.  Co.  of  North  Amc-  8  Mass.  Rep.  515 ;  Howard  v.  Albany 

rica,  1  Binn.429;  S.  C,  Condy'sMar-  Ins.  Co.,  3  Denio,  301  ;    Conover  v. 

shall,  287,  n. ;  Delany  v.  Stodart,  1  T.  Mut.  Ins.  Co.  of  Albany,  3  Denio,  254. 

R.  22  ;    Sparks  v.  Marshall,  2  Bing.  3  Jessel  v.  Williamsburgh  Ins.  Co., 

N.  C.  7G1  ;  Waters  v.  Allen,  5  Hill,  3  Hill,  88. 

421  ;  A.-ihlcy  r.  Ashley,  3  Sim.  151.  4  Castelli  v.  Boddington,  and  Bod- 

•  Sco  nc.\t  proposition.  dington  v.  Castelli,  IG  Eng.  Law  & 


SECT.  X.]  ASSIGNMENT   OP   THE   POLICY.  63 

85.  The  assignee  of  a  policy  of  insurance,  or  other  contract 
which  is  assignable  in  equity,  needs  not  to  resort  to  a  court  of 
equity  to  enforce  it.  A  court  of  law  will  recognize  his  rights 
under  the  assignment,  and  give  a  remedy  in  a  suit  brought  by  him 
in  the  name  of  the  assignor.^ 

86.  A  mere  sale  and  transfer  of  the  assured's  interest  in  tlie 
subject  insured,  does  not  operate  as  an  assignment  of  the  policy, 
as  incidental  to  the  subject. 

87.  Accordingly,  if  property  insured  is  sold,  so  that  the  assured 
retains  no  interest  in  it,  and  is  subject  to  no  risk  or  responsibility 
on  account  of  it,  and  no  assignment,  or  agreement  for  the  assign- 
ment, of  the  policy  is  made,  and  afterwards  a  loss  happens,  and 
after  the  loss  the  policy  is  assigned  to  the  vendee,  the  assignment 
will  he  ineffectual  in  respect  to  such  loss,  and  neither  the  party 
originally  insured  nor  his  assignee  can  recover  for  the  loss  ;  the 
original  assured  can  recover  nothing,  for,  having  no  interest  in  the 
property,  at  the  time  of  the  loss,  he  has  sustained  no  damage ;  nor 
can  the  assignee  recover  any  thing,  because,  at  the  time  of  the 
loss,  he  was  not  a  party  to  the  insurance.^ 

88.  Whether  on  an  absolute  sale  of  the  insured  subject  pend- 
ing the  risk  without  condition  or  reservation,  so  that  no  insurable 
interest  can  revert  to  the  assured,  and  without  any  agreement  or 
undei'standing,  express  or  implied,  respecting  the  assignment  of 
the  policy,  the  policy  becomes  extinct,  so  that  it  cannot  be  after- 
wards assigned  to  the  vendee  before  any  loss  occurs  ?  or  avail  the 
assured  on  his  regaining  his  insurable  interest  ? 

Eq.  Rep.,  (Press  of  Little,  Brown  &  Godin  v.  London  Ass.  Co.,  1  Burr. 

Co.)  ;  S.  C.  1  Eng.  Law  &  Eq.  Rep.,  489  ;    Kenyon,    244 ;    1    W.   Black- 

1853,  part  4,  Exch.  p.  281 ;  S.  C.  22  stone,   103  ;   ^tna   Fire  Ins.  Co.  v. 

Eng.  Law.  J.,  (Q.  B.)  5.  Tyler,  16  Wend.  Rep.  385  ;  Macar- 

1  Carter  v.  Union  Ins.  Co.,  1  Johns,  ty  v.  Com.  Ins.  Co.,  17  La.  Rep.  3G6  ; 
Ch.  Rep.  463  ;  Welch  v.  Mande-  Dadmun  Manuf.  Co.  v.  Worcester 
ville,  1  Wheat.  233;  Mandeville  v.  Fire  Ins.  Co.,  11  Mete.  429 ;  Bates  r. 
Welch,  5  id.  2  7  7.  A  statute  of  Penn-  New  York  Ins.  Co.,  3  Johns.  Cas.  238 ; 
sylvania  authorizes  proceedings  in  the  Howard  v  Albany  Ins.  Co.,  3  Denio, 
name  of  the  assignee.    .1  Binn.  483.  301 ;  Leavitt  v.  Western  Mar.  &  Fire 

2  Lynch    r.    Dalzell,    4     Brown's  Ins.  Co.,  7  Rob.  La.  Rep.  351 ;  Powles 
Pari.  Cases,  Tomlins's  ed.  431;  The  v.  Innes,  11  Mees.  &  W.  10. 
Saddler's  Co.  v.  Badcock  2  Atk.  554  ; 


64  OF   THE   CONTRACT   OF   INSURANCE.  [CHAP.  I- 

The  question  supposes  the  subject  and  tlie  risk  still  to  corre- 
spond to  the  description  in  the  policy. 

Take  a  case  of  the  absolute  sale  of  a  vessel  insured  for  a  period, 
the  whole  premium  having  been  paid,  and  a  repurchase,  before 
the  expiration  of  the  period.  As  the  risk  is  supposed  to  have 
commenced,  the  assured  would  not  be  entitled  to  a  return  of  any 
part  of  the  premium,  if  there  iiad  been  no  agreement  to  that  effect. 
In  case  of  the  risk  reviving  on  the  repurchase,  the  assured  loses 
the  premium  only  for  the  time  during  which  the  vessel  belonged 
to  the  vendee,  instead  of  losing  it  for  the  whole  remainder  of  the 
period,  as  he  otherwise  would  have  done. 

It  is  distinctly  implied,  though  not  directly  decided,  in  a  Mas- 
sachusetts case,^  that  the  risk  would  revive  on  the  repurchase.  It 
would  not  revive  to  cover  any  intermediate  loss,  since  the  assured, 
having  had  no  interest  in  the  mean  time,  could  not  sustain  any 
loss.  And,  in  case  of  an  intermediate  total  loss,  the  policy  would 
have  become  extinct. 

There  are,  as  we  shall  see  in  another  place,  not  unfrequent  in- 
stances of  the  suspension  and  subsequent  revival  of  the  risk,  to 
which  the  underwriter  cannot  object,  as  he  is  in  that  case,  a  gainer 
by  receiving  the  premium  for  a  time,  without  running  any  risk, 
and  his  claim  to  receive  it  upon  those  terms  for  a  still  longer  time 
could  not  be  made  but  with  a  very  ill  grace.  So  long,  then,  as 
the  subject  and  the  risk  remain  the  same  that  they  are  described 
to  be  in  the  policy,  we  have  ground  for  the  doctrine  that,  if  the 
assured,  after  parting  with  his  interest,  regains  it,  the  policy  will 
reattach,  in  case  of  no  prejudice  to  the  underwriter. 

It  follows,  that  the  assured  continues  to  have  an  interest  in  the 
policy  during  the  interruption  of  the  risk  for  want  of  a  subject- 
matter  to  which  it  can  attach.  So  long  as  he  has  such  an  interest 
in  the  policy,  it  is  subject  to  the  general  doctrine  as  to  being 
assignable  in  equity. 

I  conclude,  therefore,  that,  though  the  subject  may  have  been 
absolutely  transferred  pending  the  risk,  and  the  risk  may  have 
been  thus  inlcrrupied,  it  will  revive  by  an  assignment  of  the  policy 

'  Carroll  v.  Boston  Mar.  Tiis.  Co.,  8  Mass.  Rep.  515. 


SECT.  X.]  ASSIGNMENT   OF  THE   POLICY.  66 

to  the  vendee  of  the  subject,  and  cover  subsequent  losses,  but  not 
intermediate  ones.  All  the  decisions  above  cited  on  this  subject 
are  consistent  with  this  doctrine,  since  they  are  made  upon  claims 
for  intermediate  losses,  happening  to  a  party  who  had  not,  at  the 
time,  any  interest  in  the  policy. 

89.  If  the  assured  sells,  agreeing  to  stand  trustee  of  the  sub- 
ject for  the  vendee,  he  will  hold  the  policy  as  such.^ 

90.  If  the  sale  of  the  subject  is  conditional,  and  the  vendor 
retains  an  insurable  interest  as  mortgagee,  or  guarantor,  as  to  the 
perils  insured  against  in  the  policy,  the  policy  is  not  annulled,  but 
remains  in  force,  unless  the  transfer  is  in  contravention  of  some 
express  or  implied  obligation  of  the  assured.^ 

Where  the  contract,  or  the  circumstances  in  which  it  is  made, 
import  that  the  subject  is  to  be  in  the  care  of  the  assured  person- 
ally, and  the  transfer,  if  the  insurance  remained  valid,  would  ex- 
pose the  insurers  to  be  affected  by  the  acts  of  new  parties,  strangers 
to  the  contract,  which  they  could  not  have  expected  to  be,  the 
insurance  will  be  rendered  inoperative  by  the  transfer.  Accord- 
ingly, since  the  transfer  might  give  rise  to  questions,  it  is  advisable 
in  all  cases  of  assignment  of  the  subject,  to  have  the  assent  of  the 
underwriters  to  the  transfer  of  the  policy. 

9\.  If  a  party  who  has  an  interest  in  preserving  or  insuring  a 
subject,  whether  by  reason  of  his  property  in  it,  or  lien  upon  it,  or 
a  liability  he  may  be  under  respecting  it,  agrees  with  another, 
who  has  an  insurable  interest  in  it,  to  insure  it  for  such  other^s 
benefit,  in  the  name  of  either,  and  effects  insurance  in  terms  im- 
porting that  it  is  for  the  benefit  of  such  other,  or  consistent  with 
such  construction,  this  is  a  constructive  equitable  assignment  of 
the  policy  to  such  other,  where  an  assignment  or  trust  is  requisite 
to  give  such  other  the  benefit  of  the  contract. 

A  debtor  agreed  to  effect  a  policy  on  his  life  for  the  benefit  of  a 
creditor,  and  to  assign  it  to  him  and  leave  it  in  his  hands,  and  in 
pursuance  of  that  agreement  effected  a  policy  in  his  own  name, 
expressed  to  be  payable  to  the  creditor.     This  was  decreed,  in 

1  Powks  V.  Innes,  11  Mees.  &  "W.  2  Bell  v.  Western  ]\Iar.  &  Fu-e  Ins. 
10;  Reed  v.  Cole,  3  Burr.  1512.  Co.,  5  Eob.  La.  Rep.  423. 

6* 


66  OP   THE   CONTRACT   OF  INSURANCE.  [CIIAP.  I. 

England,  by  Wigram,  V.  C,  to  give  to  the  creditor  an  equitable 
interest  in  the  policy,  tbough  it  had  not  been  assigned  to  the  cre- 
ditor, or  left  in  his  hands. ^ 

A  purchaser  of  one  of  the  tenements  insured  by  a  policy,  was 
admitted  by  the  insurance  company,  being  a  mutual  one,  as  a 
member  in  respect  to  the  purchased  tenement,  at  the  request  of 
the  vendors,  and  it  was  held  in  Maine  that  this  was  a  sufficient 
assignment  of  an  interest  in  the  policy  to  be  the  ground  for  the 
grantor's  recovering  of  the  grantee  the  proportion  of  premium  pre- 
viously paid  by  the  grantor,  on  account  of  the  unexpired  risk  on 
the  conveyed  tenement  at  the  time  of  the  conveyance.^ 

Wool  was  delivered  to  the  manufacturer  to  be  manufactured, 
and,  on  payment  being  made  therefor,  it  was  to  become  his,  on  an 
agreement  that  he  should  effect  insurance  upon  it,  in  the  mean 
time,  for  the  benefit  of  the  owner;  and,  in  pursuance  of  the  agree- 
ment, he  insured  it  in  his  own  name.  It  was  held  in  Massachu- 
setts, that  the  owner  had  such  an  insurable  interest  in  the  policy 
as  to  prevent  a  creditor  of  the  manufacturer  from  availing  himself 
of  the  proceeds  of  the  policy  by  means  of  a  foreign  attachment.^ 
That  is,  the  manufacturer  was  considered  to  hold  the  policy  as 
trustee  for  the  owner  of  the  wool. 

92.  j4.  general  assignment  of  the  property  of  the  assured, 
including  the  subject  of  a  policy  of  insurance,  with  apt  words  for 
transferring  policies  of  insurance  or  other  choses  in  action,  will  be 
operative  as  an  equitable  assignment  of  a  policy,  at  least  where 

1  Cook  V.  Black,  Trustee  of  the  Bri-  bursement  of  his  advances,  is,  under 
tannia  Life  Ins.  Co.,  reported  2  Jones's  the  particular  circumstances,  con- 
Annuities,  p.  1186.  In  Paradise  i'.  strued  by  Eustis,  C.  J.,  and  his  asso- 
Sun  Mut.  Ins.  Co.,  6  La.  Annual  Rep.,  ciates,  to  be  subject  to  the  same  ex- 
an  insurance  of  freijiht  for  wliom  it  ceptions  of  risks  to  be  run  by  the 
may  concern  by  the  assignee  of  the  insurers,  that  it  would  be  subject  to 
freight-list  in  his  own  name,  to  whom  if  it  had  been  made  in  the  name  of 
it  is  a.ssigned  as  collateral  security  for  the  ship-owner  and  for  his  sole  bene- 
advances,  with  an  agreement  that  he  fit. 

shall   insure   it  and  charge   the   pre-         2  Sherman  i-.  Fair,  2  Speer,  S.  Car. 

niium  to  the  assignor,  and  account  to  Rep.  (54  7. 

the  a.ssignor  for  the  surplus  of  the  ^  Providence  County  Bank  i'.  Ben- 
proceeds   of  the    policy   after   reim-  son,  24  Piek.  204. 


SECT.  X.]  ASSIGNMENT   OP   THE   POLICY.  67 

the  policy  contains  no  restriction  against  its  assignment.  And  it 
has  been  held  in  some  cases,  that  such  an  assignment  will  avail, 
notwithstanding  a  condition  that  the  policy  uhall  be  void  on  assign- 
ment.^ 

93.  Mortgaging  the  insured  premises  is  not  an  " alienation" 
under  a  provision  of  the  charier  of  an  insurance  company  making 
the  policy  void  on  an  alienation  by  sale  or  otherwise.^  One  ground 
of  the  decision  is,  that  the  assured  still  retained  his  insurable  inte- 
rest to  the  amount  of  the  full  value,  which  makes  the  decision 
applicable  to  cases  of  mortgaging  by  the  assured  generally. 

94.  A  policy  by  a  testator  on  the  life  of  a  debtor  will  pass 
under  a  general  bequest,  as  that  of  "debts  and  debentures."^ 

95.  Under  the  English  jurisprudence  it  is  necessary,  in  order  to 
secure  the  assigned  policy  to  the  assignee  against  the  claims  of  the 
creditors  of  a  bankrupt  or  insolvent  assignor,  that  notice  of  the 
assi'Tnment  should  be  given  to  the  insurers  before  the  act  of  bank- 
ruptcy.^ 

This  rule  is  put  upon  the  ground  of  a  presumption  in  favor  of 
creditors,  that  the  interest  in  the  policy  remains  with  the  assured 
or  other  holder  of  a  policy,  until  the  insurers  are  put  under  a  legal 
or  equitable  liability  to  the  assignee  by  notice  of  the  assignment. 

The  reason  on  which  that  rule  is  founded  is  as  applicable  in  the 
United  States  as  in  England.  Some  American  decisions,  in  analo- 
gous cases,  are  in  favor  of  it,^  others  against  it.^  But  the  assign- 
ment in  question  surely  ought  not  to  put  the  assignees  in  any  better 

1  See,  Lazarus  v.  General  Interest  ren's  Irish  Ch.  Rep.  555 ;  Williams  v. 
Ins.  Co.,  5  Pick.  76;  Lazarus  v.  Com-  Thorpe,  2  Sim.  257;  Ellis,  Ins.  144; 
monwealth  Ins.  Co.,  19  Pick.  81  ;  and  Ex  parte  Colvill  et  al.,  1  Mont.  110; 
Dadmun  Manuf.  Co.  v.  Worcester  S.  C,  Ellis,  Ins.  148  ;  Smith  r.  Smith, 
Fire  Ins.  Co.,  11  Mete.  429,  in  which  1  Tyrw.  52  ;  2  Crompt.  &  M.  231  ; 
last  case  the  assignment  for  the  benefit  Gardiner  v.  Lachlan,  4  Mylne  &  Craig, 
of  creditors  Is  held  to  be  a  forfeiture.  129  ;  Ex  parte  Waithman,  2  Deac.  & 
But  see  infra.  No.  107.  C.  412. 

2  Conover  v.  Mutual  Ins.  Co.  of  ^  Woodbridge  v.  Perkins,  3  Day, 
Albany,  3  Denio,  254.  364 ;  Judah  i'.  Judd,  5  Day,  534. 

3  Phillips  V.  Eastwood,  Lloyd  and  ^  Dix  v.  Cobb,  4  Mass.  512;  Ste- 
Goold's  Cases,  291,  tempore  Sugden.  vens  v.  Stevens,  1  Ash.  190;  Stock- 

4  In  re  Hennessy,  2  Drury  &  War-  ton  r.  Hall,  Hardin,  160. 


68  or  THE   CONTRACT   OF  INSURANCE.  [CHAP.  I. 

position  than  that  of  an  assignee  in  other  cases,  and  the  law  is, 
if  it  does  not,  that,  in  case  the  underwriter  has  notice  of  the 
assignment  before  payment  of  the  loss,  whether  the  assignor  is 
solvent  or  has  become  insolvent  after  the  assignment,  he  is  liable 
to  the  assignee,  claiming  against  the  other  creditors  under  insol- 
vency or  bankruptcy.  This  I  understand  to  be  the  law  on  the 
subject  in  the  United  States. 

96.  Where  notice  to  the  insurers  prior  to  an  act  of  bankruptcy, 
is  necessary  to  the  validity  of  the  assignment  of  a  policy,  as 
against  the  claims  of  the  creditors  of  an  insolvent  assured,  it  is  not 
enough  that  the  assignor  is  himself  an  agent  of  the  insurers. 
The  agent's  knowledge  of  the  assignment,  or  notice  to  him,  will 
not,  in  such  case,  be  imputed  to  his  principal.^ 

But  where  an  assured  member  of  a  joint-stock  company  assigns 
his  policy  together  with  the  property  insured,  the  fact  that  the 
assig7wr  is  a  member  of  the  company,  and  so  a  copartner  with 
the  other  members,  will  affect  the  company  with  notice  of  the 
assignment,  and  secure  the  policy  for  the  benefit  of  the  assignee 
against  a  subsequent  disposition  of  it  by  the  assignor.^ 

97.  The  fact  of  making  out  a  policy  with  notice  to  the  in- 
surers of  an  intention  to  assign  it,  is  held  not  to  be  of  itself  a 
consent  of  the  insurers  to  such  assignment,  where  one  of  the  con- 
ditions requisite  to  its  assignment  has  not  been  complied  with. 

Under  a  provision  that  the  policy  should  be  void  if  assigned 
without  the  written  consent  of  the  insurers,  a  by-law  of  a  fire  com- 
pany provided  that  policies  might  be  assigned  to  mortgagees  on 
their  signing  the  premium  note.  In  the  written  application  of  the 
mortgager  for  a  policy,  he  stated  that  he  proposed  the  assignment 
of  a  certain  amount  of  it  to  the  mortgagee,  but  no  specific  assign- 
ment was  made,  nor  was  the  premium  note  signed  by  the  mort- 
gagee, nor  was  any  assent  given  by  the  company  to  an  assignment, 
otherwise  than  by  making  out  the  policy  to  the  mortgager,  which 
contained  an  express  reference  to  the  written  application  "for  a 
more  particular  description,  as  forming  a  part  of  the  policy.     It 


1  In  re  llcnnessy,  2  Drury  &  War-        ~  Duncan  v.  Chamberlayne,  11  Si- 
ren's Iriah  Ch.  Rep.  555.  mons's  Ch.  Hop.  123. 


SECT.  X.]  ASSIGNMENT   OF   THE   POLICY.  69 

was  held  in  New  York  that  the  act  of  making  out  the  policy  was 
not  a  written  consent  to  an  assignment  of  it.' 

98.  The  mere  delivery  of  the  policy,  without  any  other  act  of 
assignment,  for  the  jmrjjosc  of  security  to  the  depositary,  gives 
him  a  lien  on  the  proceeds  of  the  policy,  for  the  purpose  of  such 
security  or  indemnity,  against  other  claims  on  the  policy  or  pro- 
ceeds of  which  such  depositary  had  no  notice  at  the  time  of  the 
delivery  of  the  policy  to  him.^ 

99.  Where  a  policy  is  delivered  to  a  second  assignee,  without 
notice  to  him,  by  indorsement  on  the  policy  or  otherwise,  of  a 
prior  assignment  to  another,  the  second  assignment  will  prevail 
against  the  first. ^ 

100.  So  an  assignment  of  the  policy,  with  delivery  of  it,  with- 
out notice  to  the  assignee  of  a  prior  lien,  will  prevail  over  the 
lien,  which  will  not  be  revived  by  the  policy  subsequently  com- 
ing into  the  hands  of  the  party  who  had  the  lien,  for  the  pur- 
pose of  prosecuting  the  claim  of  the  assignee  against  the  under- 
writers.'* 

101.  A  mere  depositary  of  a  policy  has  not,  as  such,  author- 
ity, by  any  act  of  his,  to  give  a  third  party  any  lien  upon  it.^ 

102.  The  assent  of  the  insurers  to  an  order,  dated  after  a  loss 
by  fire,  to  ''pay  the  loss  "  to  a  third  party,  does  not  deprive  them 
of  the  election  reserved  in  the  policy,  to  rebuild,  instead  of  paying 
damage.^ 

103.  A  covenant  by  a  tenant  to  keep  premises  insured,  runs 
with  the  land,  and  enures  to  the  benefit  of  the  assigns  of  the  les- 
sor.'^ 

104.  In  case  of  the  decease  of  an  assured,  where  the  premium 
has  been  paid  and  the  policy  survives  for  a  subsequent  period,  the 
question  arises  whether  the  equitable  interest  in  it  passes  by  will, 

1  Smith  V.  Saratoga  Mut.  Fire  Ins.  3  Wells  v.  Archer,  10  Serg.  &  R.412. 
Co.,  3  Hill,  508.  4  Wells  v.  Archer,  supra. 

2  Wells  V.  Archer,  10  Serg.  &  R.  5  Spring  v.  S.  C  Ins.  C,  8  Wheat. 
412.     See  also  Lazarus  v.  Common-  268. 

wealth  Ins.  Co.,  5  Pick.  76,  and  19  id.         6  Tolman  y. Manufacturers'  Ins.  Co., 

81,  and  Charleston  Ins.  &  Trust  Co.  r.     1  Cushing,  73. 

Neve,  2  M'Mullan,  S.  Car.  Rep.  237.        7  Vernon  v.  Smith,  5  B.  &  A.  1. 


70  OF  THE  CONTRACT  OF  INSURANCE.       [CHAP.  I. 

or  by  the  laws  of  distribution  of  the  property,  to  the  same  party  to 
ivhom,  or  in  trust  for  whom,  the  insured  subject  passes. 

The  question  is  stated  thus  generally  for  the  purpose  of  suggest- 
ing more  distinctly  to  the  mind  what  ought  to  be  the  rule.  It  is 
obvious  that,  if  the  amount  paid  by  the  insurers  for  a  loss  subse- 
quent to  the  decease  does  not  go  to  the  same  party  to  whom  the 
insured  subject  was  destined  by  will,  or  the  laws  of  descent  and 
distribution  of  estates,  the  intent  of  the  deceased  is  directly  con- 
travened. This  is  equally  true,  whether  he  died  testate  or  intes- 
tate, since,  in  the  latter  case,  he  is  presumed  to  have  intended  that 
his  estate  should  go  as  it  would  pass  by  the  laws  of  descent  and 
distribution,  in  the  form  in  which  he  left  it  at  his  decease. 

In  some  cases,  where  a  trust  existed,  or  could  be  presumed, 
courts  have  treated  the  proceeds  accordingly. 

A  tenant  for  life  stated  in  his  will  that  certain  stocks  were  an 
investment  of  the  proceeds  of  an  insurance  of  the  real  estate,  burnt 
down,  and  paid  for,  during  the  life  of  a  preceding  tenant  for  life, 
and  were  parcel  of  the  real  estate.  The  English  V.  C,  Plumer, 
decreed  this  disposition  of  the  fund  ;  ^  although  it  does  not  appear 
that  either  tenant  for  life  had  any  interest  in  the  fund,  otherwise 
than  as  such  tenant. 

In  another  case,  the  Vice-Chancellor  presumed  a  renewal  of  a 
policy  upon  a  house  to  have  been  made  by  an  executrix  in  trust, 
as  such,  instead  of  being  renewed  exclusively  on  her  own  proper 
account,  the  presumption  being  made  for  the  purpose  of  rendering 
the  amount,  paid  by  the  insurers,  auxiliary  to  giving  security  for  an 
annuity  granted  by  the  testator's  will  to  his  widow.- 

But  the  doctrine  which  the  courts  have  generally  felt  bound  to 
adopt,  is,  that,  in  the  absence  of  any  destination  of  the  proceeds 
of  a  policy  by  the  deceased,  though  a  trust  created  by  his  will  or 
otherwise,  the  devise  or  bequest  of  the  subject  does  not  cause  the 
policy  to  pass  as  incident  to  it. 

In  case  of  insurance  of  chattels,  the  policy  passes  with  them  to 
the  administrator  or  executor,  and  is  available  to  the  executor  for 
indemnity  so  long  as  they  remain  in  his  possession  in  trust,  unless 

'  Norris  r.  Harrison,  2  IMadd.  278.  2  Parry  v.  Ashley,  3  Sim.  97. 


SECT.  X.]  ASSIGNMENT   OF  THE  POLICY.  71 

the  policy  contains  some  provision  to  tlie  contrary.  But  in  such 
case  it  does  not  appear  distinctly,  in  the  jurisprudence  on  the 
subject,  that  the  proceeds  of  the  policy  that  come  into  the  hands 
of  the  executor  as  indemnity  for  a  loss  that  happens  after  the  tes- 
tator's decease,  will  be  payable  to  a  legatee,  to  whom  an  interest 
in  the  chattel  is  bequeathed.  There  does  not,  however,  seem  to 
be  any  difficulty  in  making  such  a  disposition,  since  the  proceeds 
of  the  policy  are  received  by  the  executor  in  his  capacity  of  trus- 
tee, the  same  in  which  he  possesses  the  bequeathed  chattel.  The 
cases  above  referred  to,  so  far  as  their  authority  goes,  would  jus- 
tify the  application  of  the  fund  in  this  way. 

An  insurance  on  buildings  which  survives  the  original  assured, 
presents  difficulties  in  the  way  of  an  equitable  disposition  of  the 
amounts  paid  for  losses  happening  after  his  decease,  which  the 
judicial  tribunals  have  generally  considered  to  be  insurmountable. 
No  legal  tribunal  seems  to  have  laid  down  the  doctrine,  that  the 
transfer  of  real  estate,  by  the  decease  of  the  assured,  carries  the 
policy  as  incident  to  the  estate,  any  more  than  a  transfer  during 
his  life  would  have  that  effect.  On  the  contrary,  what  there  is  of 
jurisprudence  on  this  subject  favors  the  doctrine  that  the  insurance 
on  real  estate  is  a  personal  contract,  and  that  the  proceeds  of  it, 
if  any,  go  as  personal  property.^ 

Where  buildings  were  insured  in  a  company,  by  the  articles  of 
which  the  interest  in  policies  was  to  survive  to  executors,  Lord 
Eldon  remarked,  "It  is  impossible  to  make  the  executor  trustee." ^ 
Equity,  and  the  general  principles  governing  insurance,  require  a 
provision  in  policies  upon  the  subject,  or  legislative  interposition.^ 

Where  a  court  is  not  hindered  by  precedents  from  equitably 
effectuating  the  intention  of  the  testator  in  maJcing  a  devise,  or  of 
the  law  in  prescribing  the  descent  of  real  estates,  such  intention 
seems  to  authorize  and  require  the  same  disposition  of  the  pro- 
ceeds of  the  policy  as  would  have  been  made  of  the  subject  of  it, 


1  Haxall's    Ex'rs   v.    Shippen,   10  visions  relative  to  assignments,  and 
Leigh,  437.  notice  thereof  to  the  insurers,  but  not 

2  Mildmay  v.  Folgham,  3  Ves.  472.  resi^ecting  the  payment  of  a  loss  to  a 

3  Fire  policies  frequently  have  pro-  legatee  or  devisee. 


72  OF   THE    CONTRACT   OF   INSURANCE.  [CUAP.  I. 

in  case  no  provision  in  the  will  of  the  deceased  indicates  a  differ- 
ent intention.  And  the  same  rule  seems  to  be  equally  applicable 
to  an  outstanding  claim  for  a  loss,  where  a  different  intention  is  not 
indicated  by  some  act  of  the  deceased  during  his  life.  The  rule 
is  no  more  than  equivalent  to  that  of  equity,  that  a  fund  directed 
to  be  converted  into  real  estate  shall  be  treated  as  such.  It  is 
merely  holding  that  the  substitute  for  a  piece  of  real  estate  or  for 
a  part  of  its  value,  shall  be  subject  to  the  same  disposition  that  is 
made  of  the  subject  itself. 

105.  Whether,  in  case  of  a  fire  policy  having  been  assigned 
by  the  mortgager  to  the  mortgagee,  and  suit  commenced  and  judg- 
ment recovered  for  a  loss  in  the  name  of  the  mortgager  for  the 
benefit  of  the  mortgagee,  the  payment  of  the  debt  by  the  mortgager, 
before  the  judgment  is  satisfied,  is  a  constructive  reassignment  of 
the  policy  and  judgment  to  the  mortgager?  It  was  held  in  New 
York,  that  the  payment  of  the  debt  to  the  mortgagee  did  not 
operate  as  a  reassignment  of  the  interest  in  the  policy,  so  as  to 
put  the  mortgager  in  place  of  the  mortgagee,  and  entitle  him  to 
the  benefit  of  the  judgment,  against  the  insurers,  for  the  loss.^ 

It  is  so  held  on  the  ground  that  the  assignment  is  equivalent  to 
the  making  of  a  new  insurance  by  the  mortgagee  in  his  own  name, 
upon  his  own  insurable  interest,  which  is  a  sufficient  basis  of  an 
insurance  made  independently  of  the  mortgager  ;  for  the  circum- 
stance that  the  name  of  the  mortgager  must  be  used  in  the  suit  is 
mere  matter  of  form  in  the  remedy,  which  is  not  necessary  if  the 
assignment  is  assented  to  by  the  insurers.  But  in  most  cases  of 
such  assignments,  the  premium  is  paid  by  the  mortgager,  and  the 
assignment  of  the  policy,  or  the  policy  itself  is,  in  fact,  made  to 
the  mortgagee  in  trust,  to  apply  the  proceeds  of  the  policy  in 
repairing  daniage,  or  in  payment  of  the  debt ;  and  in  case  o/any 
express  or  implied  understanding  to  this  effect,  written  or  spoken, 
the  mortgager  would  certainly  be  required  to  account  for  and 
apply  the  proceeds  of  the  policy  accordingly,  and  his  liability  so 
to  do  constitutes  a  sullicient  insurable  interest,  notwithstanding  the 
payment  of  the  debt  by  the  mortgager  or  any  surety  of  his.     The 

1  Traders'  Ins.  Co.  v.  Koberts,  9  Wend.  474. 


SECT.  X.]  ASSIGNMENT   OF   THE   POLICY.  73 

mere  statement  of  the  circumstances  would,  in  most  cases,  plainly 
import  such  a  relation  between  the  parties  to  the  mortgage  and 
the  policy,  though  nothing  were  written  or  said  directly  upon  the 
subject.^ 

106.  Where  a  policy  is  assigned  by  consent  of  the  underwriters, 
reserving  all  rights  of  set-off,  the  reservation  applies  to  rights  of 
set-oiF  of  contracts  or  liabilities  existing  at  the  date  of  the  assign- 
ment.- 

107.  A  restriction  in  a  policy,  that  it  shall  become  void  by 
assignment  without  the  consent  of  the  underwriters,  is  not  void 
as  an  unlawful  restraint  upon  the  transfer  of  property,  but  is  to 
be  strictly  construed.^ 

Accordingly,  where  a  policy,  containing  this  restriction,  was 
effected  by  an  agent,  expressed  to  be  for  a  principal  named,  loss 
payable  to  the  agent,  in  whose  hands  it  was  left,  subject  to  his 
lien,  it  was  held  in  Massachusetts,  that  the  restriction  was  valid, 
but  that  the  policy  was  not  made  void  and  forfeited  by  an  assign- 
ment by  the  assured  of  the  steamboat  insured,  and  his  other  pro- 
perty, including  "all  policies  of  insurance,"  to  a  trustee  for  the 
benefit  of  his  creditors,  which  was  substantially  the  constituting  of 
an  agency  and  a  trust  for  the  management  of  the  property,  and 
applying  the  proceeds  of  the  policy  for  the  benefit  of  the  assured.^ 

The  mind  readily  acquiesces  in  the  equity  of  this  decision,  and 
one  is  not  disposed  to  question  its  legal  correctness,  since  the  case 
seems  not  to  come  within  the  objects  of  the  underwriters  in  impos- 
ing the  restriction,  though  the  grounds  of  the  exception  of  this  case 
from  its  operation  are  not  very  satisfactorily  expressed  by  the 
court.  Mr.  C.  J.  Parker  puts  it  upon  the  fact,  that  the  policy 
was  not  in  the  hands  and  control  of  the  principal,  but  remained  in 
those  of  the  agent,  to  whom  the  loss  was  payable,  subject  to  his 

1  In  tlie  case  above  cited,  the  court  3  Lazarus  v.  General  Interest  Ins. 
remark  that  they  do  not  say  what     Co.,  5  Pick.  76. 

■would  have  been  the  effect,  had  the  4  Lazarus   v.   CcHnmonwealth  Ins. 

mortgagee  assigned  his  judgment  to  Co.,  5  Pick.  76  ;  see  also  Lazarus  v. 

the  mortgager.  Commonwealth    Ins.   Co.,   19    Pick. 

2  Wiggin  V. Suffolklns. Co.,  18 Pick.  81. 
145  ;  Waters  v.  Allen,  5  Hill,  421. 

VOL.    I.  7 


74  OF   THE   CONTRACT   OF   INSURANCE.  [CHAP.  I. 

lien,  and  therefore  was  not  assigned  by  the  general  words  "all 
policies  of  insurance,"  and  that  in  these  circumstances  the  assured 
could  not  make  an  "effectual"  assignment  of  it.  But  if  it- had 
contained  no  such  clause,  he  might  have  made  an  effectual  assign- 
ment in  equity  of  his  interest  in  it,  together  with  the  steamboat 
insured,  subject  to  the  agent's  lien.  This  was  all  the  assignment 
that  he  could  have  made  of  it  without  the  clause  in  question.  He 
could  not,  in  that  case,  have  turned  over  the  underwriters  to  a 
third  party,  so  as  to  render  them  liable  to  such  third  party  in  an 
action  at  law  in  the  assignee's  name.  It  does  not,  therefore,  ap- 
pear why  the  assured  could  not  have  made  an  "  effectual "  assign- 
ment of  the  policy,  if  it  had  not  contained  the  clause  in  question  ; 
nor  why  the  words  "all  policies,"  would  not  have  been  as  effect- 
ual in  assigning  it,  subject  to  the  agent's  lien,  as  similar  general 
words  would  be  in  assigning  any  other  rights  of  the  assignor, 
which  must  be  enforced  by  the  assignee  in  the  name  of  the 
assignor. 

Since  a  general  assignment  of  property  to  a  trustee,  to  be 
managed  for  the  benefit  of  the  assured  and  his  creditors,  leaves 
him  to  be  still  a  party,  and  is  to  be  favored  by  the  law,  and  in 
fact  usually  leaves  the  property  to  be  still  managed  by  the  debtor 
himself,  so  far  as  the  assignee  and  creditors  can  avail  of  his  ser- 
vices for  this  purpose,  and  at  the  most  is  substantially  only  the 
appointment  of  an  agent  by  the  assured  to  manage  the  property 
and  apply  its  proceeds  for  him,  as  also  those  of  the  policy,  it  can- 
not be  presumed  to  be  such  an  assignment  as  was  contemplated 
by  the  underwriters  in  providing  the  restriction,  any  more  than  a 
transfer  by  will,  on  his  decease,  would  be.  It  is  an  agency  and 
trust  for  the  assured  himself,  rather  than  the  interposition  of  a  third 
independent  party.  This  ground  of  the  decision  is  implied  in  the 
reports  of  the  cases  above  cited. ^ 

As  to  the  rule  of  strict  construction  of  this  clause,  it  can  only 
be  applied  on  the  principles  which  govern  the  construction  of  any 
other  contract ;  namely,  that  in  case  of  doubt,  the  presumption  is 
to  be  against  the  party  whose  language  it  is,  and  that,  in  deter- 

1  Sec  also  Bricbta  v.  N.  Y.  La  Fayette  Ins.  Co.,  2  Hall's  R.  372,  cited  infra. 


SECT.  XI.]  ALTERATION  AND  CANCELLINU  OF  THE  POLICY.     75 

mining  the  construction,  regard  is  to  be  had  to  the  subject-matter 
and  the  known  motive  for  introducing  the  provision. 

108.  The  clause  against  assignment  without  the  consent  of  the 
underwriters,  does  not  prevent  the  assured  from  making  a  valid 
assignment  of  his  claim  upon  the  underwriters  after  a  loss  has 
happened,  and  the  risk  has  terminated,  without  such  consent,  to 
be  enforced  in  his  name  for  the  benefit  of  his  creditors.^  This 
proposition  may  be  put  upon  the  same  ground  as  the  preceding, 
namely,  that  it  is  evidently  not  within  the  purpose  for  which  the 
restriction  was  introduced,  and  so  is  an  implied  exception. 

SECTION    XT.       ALTERATION    AND    CANCELLING    OF    THE    POLICY. 

109.  An  alteration  in  the  contract  is  commonly  made  by  an 
indorsement  on  the  policy,  signed  by  the  insurers.  A  contract 
varying  the  policy,  or  to  cancel  it,  is  as  solemn  an  act  as  the  con- 
tract of  insurance  itself,  whether  it  be  done  by  indorsement  or  by 
a  separate  instrument.^ 

110.  Alterations  duly  inserted  in  a  policy  by  the  underwriters, 
without  any  new  signature,  will  be  valid  if  assented  to  by  the 
assured,  though  merely  verbally ."^ 

Where  it  has  been  the  practice  of  the  company  to  execute  alter- 
ations by  the  secretary,  this  makes  his  act  valid.'* 

A  mutual  insurance  company  of  which  the  assured  is  a  mem- 
ber, cannot,  by  any  vote  or  regulation  adopted  subsequently  to  the 
issuing  of  the  policy,  make  any  valid  alteration  of  it  without  the 
authority  or  consent  of  the  assured.  Such  a  company  stands  upon 
the  same  footing  in  this  respect  as  any  other  company,  or  as  indi- 
vidual underwriters.^ 

111.  And  so  other  underwriters  may  be  substituted  for  the 
original  one,  for  any  part  or  the  whole  of  the  amount  insured,  by 

1  Brichta  v.  N.  Y.  La  Fayette  Ins.  3  Warren  v.  Ocean  Ins.  Co.,  16 
Co.,  2  Hall,  372.  Maine  R.  439, 

2  Head  v.  Providence  Ins.  Co.,  2        4  s.  C. 

Cranch,    167;    Kaines   v.    Knightly,        ^  jsje^y  Eng.  Mut.  Fire  Ins.  Co.  v. 
Skin.  54;  Robinson  v.  Tobin,  1  Stark.     Butler,  in  Supr.  Ct.  of  Maine,  1853. 
336;  Alauzet,  n.  193. 


76  OF   THE    CONTRACT    OF   INSURANCE.  [CHAP.  I. 

indorsement  duly  executed  by  the  substituted  underwriters,  with 
the  verbal  consent  merely  of  the  assured. ^ 

112.  Striking  a  pen  across  words  without  obliterating  them, 
so  as  to  make  them  illegible,  and  writing  others  in  their 
stead,  with  consent  of  the  underwriters,  is  a  cancelling  of  such 
words.- 

113.  A  material  alteration  of  the  policy  by  the  assured,  with- 
out the  consent  of  an  undertvriter,  makes  the  policy  void  as  to 
such  underwriter,  though  it  is  made  loithout  any  fraudulent  pur- 
pose, but  with  the  intent  to  obtain  the  underwriter's  consent.^ 
The  underwriter  is  not  liable  on  the  instrument  executed  by  him, 
which  has  thus  been  voluntarily  cancelled,  and  not  on  the  altered 
instrument,  since  he  is  not  a  party  to  it. 

But  where  divers  underwriters  subscribe  the  same  policy,  any 
agreement  by  one  of  them  in  a  separate  instrument,  without  era- 
sure or  additions  in  the  policy  itself,  will  not  affect  it  in  respect  to 
the  others.'* 

In  a  policy  on  a  voyage  "from  Cuba  to  Liverpool,"  the  assured 
inserted  "with  leave  to  call  off  Jamaica,"  intending  to  get  the 
assent  of  the  underwriters  ;  all  of  whom  assented  except  one,  in  a 
suit  against  whom,  Dallas,  C.  J.,  Park,  J.,  Burrows,  J.,  and  Rich- 
ardson, J.,  of  the  English  Court  of  Common  Pleas,  held  that  the 
policy  was  thus  made  void  as  against  the  defendant.  Dallas,  C.  J. : 
"It  is  clear  that  an  alteration  in  a  material  fact  will  render  an 
instrument  void.  In  this  case,  the  alteration,  when  made,  was 
material."^ 

Lord  Ellenborough  ruled  in  like  manner  in  a  similar  case.^ 

114.  An  immaterial  alteration,  at  least  if  honestly  made,  does 
not  annul  the  contract. 

As  where  the  assured  inserted  a  clause  giving  a  liberty,  which 

1  Merry  v.  Prince,  2  Mass.  R.  17G.  5 ;  Laird  v.  lloLevtson,  4  Br.  V.  C.  by 
So  alterations  may  be  iiulorscd.  Driggs     Tomlin,  488. 

V.  The  Albany  Iiis.  Co.,  10  Barb.  Supr.  ''  Alauzet,  n.  1 93,  Yol.  I.  p.  3G0. 

Ct.  11.  (N.  Y.)  440.  5  Forshaw  v.  Chabert,  3  B.  &  B.  158- 

2  Fairlic  v.  Christie,  7  Taunt.  41G.  c  Campbell  v.  Christie,  2  Stark.  R. 

3  Masters  v.  Miller,  4  T.  R.  320 ;  64  ;  sec  also,  to  the  same  ellect,  Lang- 
Sanderson  j'.McCullom,4  J.  B. Moore,  horn  r.  Cologan,  4  Taunt.  330. 


SECT.  XII.]     THE  JUDICIAL   CORRECTION   OF   MISTAKES. 


77 


was  authorized  by  the  policy  as  originally  executed,  with  the  in- 
tention of  obtaining  the  consent  of  the  underwriters  to  it.^ 

115.  The  alteration  of  the  policy  by  another  person  than  the 
assured,  without  his  consent  or  privity,  does  not  render  it  void.^ 

SECTION    XII.       THE    JUDICIAL    CORRECTION    OF    MISTAKES. 

116.  If  a  mistake  has  occurred  in  framing  the  contract,  to  the 
correction  of  which  the  policy  itself  affords  no  cleiv,  it  cannot  be 
corrected  by  a  court  of  law,^  which  will  only  construe,  and  will 
not  reform  the  contract.  The  mistake  can  be  corrected  only  by 
the  consent  of  the  parties,  or  by  a  court  of  equity. 

Thus  it  was  held  in  New  York,  that  a  policy  on  "freight" 
could  not  be  applied,  upon  the  strength  of  verbal  testimony  merely, 
to  any  subject  different  from  that  to  which,  by  its  terms,  it  appeared 
to  be  applicable."* 

117.  A  court  of  chancery  will,  upon  sufficient  proof,  correct  a 
mistake  in  filing  up  the  policy.^ 


1  Sanderson  v,  Symonds,  1  B.  &  B. 
426 ;  Sanderson  i'.McCullom,4Moore, 
5.  I  am  indebted  to  Judge  Duer,  for 
pointing  out  the  error  in  stating  these 
two  cases  in  my  early  editions.  See 
also  Falmoutli  v.  Roberts,  5  M.  &  W. 
469. 

2  Langhorn  v.  Cologan,  4  Taunt. 
330  ;  Nichols  v.  Johnson,  10  Conn.  R. 
192. 

3  Cheriot  ii.  Barker,  2  Johns.  S46 ; 
Constable  t'.  Noble,  2  Taunt.  403; 
Manly  v.  United  Mar.  &  Fire  Ins.  Co., 
9  Mass.  R.  85.  In  Bates  v,  Grabham, 
2  Salk.  444,  Holt,  C.  J.,  cites,  with 
apparent  approbation,  a  case  which 
he  says  was  decided  in  Chief  Justice 
Pemberton's  time.  "An  insurance 
was  made  from  Archangel  to  the 
Downs,  and  from  thence  to  Leghorn, 
but  there  was  a  parol  agreement  that 

7* 


the  policy  should  not  commence  till 
the  ship  came  to  such  a  place.  And 
it  was  held  that  the  parol  agreement 
should  avoid  the  writing."  But  Chief 
Justice  Pemberton  seems  to  have  en- 
tertained a  different  opinion.  "Poli- 
cies," he  said,  "were  sacred  things, 
and  a  merchant  should  no  more  be 
allowed  to  go  from  what  he  had  sub- 
scribed in  them,  than  he  that  subscribes 
a  bill  of  exchange."  Kaines  v.  Knight- 
ly, Skin.  54. 

4  Mellen  and  Nesmith  v.  National 
Ins.  Co.,  1  Hall,  452 ;  and  see  Cham- 
berlin  v.  Harrod,  5  Greenl.  420. 

5  Implied  by  Lord  Eldon,  2  N.  R. 
322 ;  Livingston,  J.,  Graves  v.  Mar. 
Ins.  Co.,  2  Caines,  339 ;  and  Wash- 
ington, J.,  Hogan  V.  Delaware  Ins. 
Co.,  1  Wash.  C.  C.  R.  419. 


78  OF   THE   CONTRACT   OF   INSURANCE.  [CIIAP.  I. 

Lord  Chancellor  Hardwicke  says  :  "  No  doubt  this  court  has 
jurisdiction  to  relieve  in  regard  to  a  plain  mistake  in  contracts  in 
writing,  as  well  as  against  frauds  in  contracts,  so  that  if  reduced 
into  writing  contrary  to  the  intent  of  the  parties,  on  proper  proof, 
that  would  be  rectified.  But  there  ought  to  be  the  strongest  proof 
possible.^ 

The  Supreme  Court  of  the  United  States  assumes,  very  dis- 
tinctly, that  a  court  of  equity  may  correct  a  mistake  in  a  policy.^ 

Mr.  Justice  Story  says,  on  the  same  subject :  ^  "  There  cannot 
be  any  doubt  that  a  court  of  equity  has  authority  to  reform  a  con- 
tract, where  there  has  been  an  omission  of  a  material  stipulation 
by  mistake.  A  policy  of  insurance  is  within  this  principle.  But 
a  court  ought  to  be  extremely  cautious  in  the  exercise  of  such  an 
authority.  It  ought  to  withhold  its  aid  where  the  mistake  is  not 
made  out  by  the  clearest  evidence."* 

A  case  occurred  in  1739,  before  Lord  Hardwicke,  on  a  policy 
upon  the  ship  Eyles,  the  risk  being  described  to  commence  "  from" 
and  immediately  "after"  her  departure  from  Fort  St.  George.  In 
another  part  of  the  policy  the  risk  was  described  to  be  "at  and 
from"  that  fort.  In  the  "label,"  signed  by  the  agent  of  the  as- 
sured and  two  of  the  directors  of  the  insurance  company,  whereby 
the  policy  was  agreed  for,  the  risk  was  described  to  be  "  at  and 
from"  Fort  St.  George.  It  was  not  disputed  by  the  insurers  that 
it  was  the  intention  of  both  parties  that  the  policy  should  be  so  made. 
It  seems  also  that  the  label  was  considered  of  great  authority  in 
practice.  One  of  the  counsel  remarked,  that  "merchants  rely  so 
much  upon  the  label,  that  the  policy  is  rarely  made  out,  in  many 
instances,  unless  in  case  of  loss."  Lord  Hardwicke  decided  that 
the  policy  should  be  considered  to  be  "at  and  from."^  In  this 
case  the  policy  itself  appears  to  have  authorized  such  construction. 

1  Ilenklc  V.  Royal  Excb.  Ass.  Co.,  ^  Andrews  v.  Essex  Fire  &  Mar. 

1  Vez.  sen.  317.                     •  Ins.  Co.,  3  INIason,  G.     See  also  Dela- 

'■i  Graves  v.  Boston  Mar.  Ins.  Co.,  2  ware  Ins.  Co.  v.  Ilogan,  2  Wash.  C.  C. 

Cranch,  at  p.  441.     See  also  Baker  R.  4  ;  Bell  w.  Western  Mar.  &  Fire  Ins. 

f.  Paine,  1  Vez.  sen.  456.  Co.,  5  Robinson's  La.  R.  423. 

3  Lyiuan  v.  United  Ins.  Co.,  2  Johns.  ^  Motteux  v.  Loudon  Ass.  Co.  1  Atk. 

Ch.  R.  030.  645. 


SECT.  XIII.]     LEADING   PRINCIPLES   OP   CONSTRUCTION.  79 

It  seems,  however,   to   have   been    assumed    that   the  court  had 
authority  to  reform  it  by  the  label. 

A  New  York  case  supplies  a  precedent  of  the  direct  exercise 
of  the  authority  of  a  court  of  chancery  in  ordering  a  correction  of 
a  mistake  in  filling  up  a  policy,  on  the  application  of  the  assured, 
the  mistake  being  distinctly  proved.^ 

SECTION  XIII.      LEADING   PRINCIPLES    OF    CONSTRUCTION. USAGE. 

118.  It  is  proposed  to  introduce  in  this  place  only  such  lead- 
ing doctrines  on  the  construction  of  policies  of  insurance  as  seem 
to  be  properly  preliminary  to  the  subsequent  chapters.^ 

119.  The  subject-matter  of  marine  insurance  and  other  written 
mercantile  contracts,  mahes  it  necessary  to  go  out  of  the  tvriiten 
instruments,  in  order  to  interpret  them,  more  frequently  than  in 
most  other  contracts. 

It  was  early  laid  down  as  a  rule,  that,  in  determining  the  mean- 
ing of  a  policy,  regard  must  be  had  to  the  course  of  the  trade  to 
which  it  relates.^ 

The  mere  description  of  a  voyage  or  adventure  for  which  the 
insurance  is  made,  includes  the  risks  according  to  the  usual  mode 
of  pursuing  it. 

Thus  a  voyage  from  A  to  B  may  include,  by  implication,  the 
liberty  of  touching  at  C. 

A  "  whaling  voyage,"  by  the  import  merely  of  that  designation, 
includes  the  liberty  of  touching  at  the  usual  places  for  supplies,  or 
other  usual  purposes  of  such  a  voyage,  and  also  that  of  agreeing 
on  a  partnership,  or  "  mateship,"  with  other  vessels.* 

Accordingly,  in  marine  policies  a  great  many  stipulations  are 
impliedly  included  in  a  few  short  phrases,  which  stipulations  are 
not  obvious  on  the  face  of  the  instrument,  except  to  persons  con- 
versant in  the  trade  referred  to. 

1  Phoenix  Fire  Ins.  Co.  v.  Gurnee,  3  Lethulier's  case,  2  Salk.  443,  A.  D. 
1  Paige,  278.  1692. 

2  The  subject  of  construction  will  4  Child  v.  Sun  Mutual  Ins.  Co.,  3 
again  recur  frequently,  especially  un-  Sandf.  26. 

der  the  head  of  risks  and  evidence. 


80  OF  THE   CONTRACT   OF  INSURANCE.  [cHAP.  I. 

Hence  a  notion  seems  to  have  been  entertained,  that  the  prin- 
ciples of  construing  this  contract  are  not  the  same  that  are  appli- 
cable to  others.  It  is  said  that  "  policies  are  to  be  construed 
largely,"!  according  to  the  intention  of  the  parties,  and  for  the 
indemnity  of  the  assured  and  the  advancement  of  trade.^ 

120.  The  'principles  of  construction  are,  however,  the  same  in 
regard  to  this,  and  all  other  contracts  in  writing,  in  which  the 
intention  of  the  parties  is  always  to  be  sought  for  in  the  instru- 
ment itself 

"  If,"  says  Emerigon,  "  the  stipulations  of  the  policy  are  clear 
and  contain  nothing  prohibited  by  law,  the  court  is  not  permitted 
to  stray  out  of  them."  ^ 

Lord  Kenyon  says  :  "It  would  be  attended  with  great  mischief 
and  inconvenience,  if,  in  construing  contracts  of  this  kind,  we  were 
not  to  decide  according  to  the  words  used  by  the  contracting  par- 
ties ;"^  and  Lord  Ellenborough,  "that  the  same  rule  of  construc- 
tion which  applies  to  other  instruments,  applies  equally  to  this, 
namely,  that  it  is  to  be  construed  according  to  the  sense  and  mean- 
ing, as  collected  in  the  first  place  from  the  terms  used  in  it,  which 
terms  are  to  be  understood  in  their  plain,  ordinary,  and  popular 
sense,  unless  they  have  generally,  in  respect  to  the  subject-matter, 
as  by  the  known  usage  of  trade,  or  the  like,  acquired  a  peculiar 
sense  distinct  from  the  popular  sense  of  the  same  words,  or  unless 
the  context  evidently  points  out  that  they  must,  in  the  particular 
instance,  and  in  order  to  effectuate  the  immediate  intention  of  the 
parties,  be  understood  in  some  other  special  and  peculiar  sense."^ 

The  principle  of  construing  according  to  the  intention  applies 
to  other  instruments  as  well  as  policies.  "There  are  many  cases 
on  the  construction  of  bonds,  where  the  letter  of  the  condition  has 
been  departed  from,  to  carr}'-  into  effect  the  intention  of  the  par- 
ties." ^    That  policies  of  insurance  are  governed  by  the  same  laws 

1  Lcc,  C.  J.,  in  Tierney  v.  Ether-  4  Aguilar  v.  Rodgers,  7  T.  R.  421. 
ington,  1  Burr.  348,  A.  D.  1743.  5  Hobcrtson  v.  French,  4  East,  135. 

2  Tark,  49  :  Tcr  Yalcs,  J.,  2  Binn.  And  sec  Illinois  Mutual  Ins.  Co.  v. 
373.     And   sec   Dow   v.  Whctten,  1  O'Neilc,  13  111.  II.  89. 

HaU's  II.  1 74.  e  Pcr  Marshall,  C.  J.,  3  Cranch,  235 ; 

3  Chap.  1,  sect.  v.  §  1.  Cooke  v.  Graham. 


SECT.  XIII.]      LEADING    PRINCIPLES    OP  CONSTRUCTION.  81 

of  construction  as  other  written  contracts,  has  been  many  times 
decided  directly  or  in  effect.^  And  though,  in  a  ivriiten  commer- 
cial contract,  it  is  necessary  to  go  out  of  the  instrument  itself  to 
interpret  it,  more  frequently  than  in  most  others,  yet  the  instru- 
ment, being  understood,  is  conclusive  of  the  rights  and  liabilities 
of  the  imrtics  ;  and  its  i)rovisions  are  not  subject  to  be  controlled 
and  superseded  by  preliminary  negotiations,  or  communications,  or 
by  verbal  agreements.^ 

121.  The  validity  and  construction  of  a  policy  of  insurance,  as 
of  other  instruments,  are  governed  by  the  laivs  of  the  place  where 
it  ivas  made,  and  of  the  places  to  which  it  has  reference  in  respect 
to  acts  to  be  done  under  it. 

A  policy  made  by  a  mutual  fire  insurance  company  in  New 
York,  on  property  in  Ohio,  on  an  application  transmitted  by  their 
agent  in  Ohio  with  the  premium  note,  the  policy  being  transmitted 
directly  to  the  assured,  and  not  through  the  agent,  was  held,  in  a 
suit  on  the  premium  note  in  New  York,  not  to  be  in  contraven- 
tion of  a  law  of  Ohio  providing  that  "  no  policy  should  be  signed, 
issued,  and  delivered,"  in  that  State,  by  a  company  not  chartered 
by  that  State,  or  by  an  agent  not  licensed  there.^ 

122.  A.  policy  of  insurance,  or  any  other  written  contract 
must  be  taken  in  the  sense  in  lohich  the  parties  respectively  and 
reciprocally  were  authorized  to  intend  and  understand  it,  and 
no  other  construction  can  be  put  upon  it  by  means  of  parol  testi- 
mony. 

Thus,  where  a  part-owner  insures  in  his  own  name,  and  nothing 


1  PerKent,  J.,  Goixi'.Low,  IJolius.  Phoenix  Fire  Ins.  Co.  v.  Gurnee,  1 
Cas.  341 ;  Per  Livingston,  J.,  Mum-  Paige,  278;  Eyre  v.  Marine  Ins.  Co., 
ford  V.  Ilallet,  1  Johns.  433  ;  and  Mar-  6  Whart.  247  ;  Hutchinson  v.  Bowker, 
shall,  C.  J.,  Graves  v.  Boston  Mar.  Ins.  5  Mees.  &  W.  542  ;  8  id.  823. 

Co.,  2  Cranch,  419.     See  also  Hogan  3  Hyde  v.  Goodnow,  5  Corns.  266. 

V.  Delaware  Ins.  Co.,  1  Wash.  C.  C.  But  though  the  thing  agreed  to  be 

11.419 ;  Sleghtv.  Rhinelander,  1  Johns,  done  in  another  place  be  lawful  there, 

192;  S.  C.  in  Error,  2  Johns.  531;  the  contract  will  be  void,  if  it  be  a 

and  see  also  2  Johns.  351.  violation  of  the   laws   of  the   place 

2  See  Bell  v.  Western  Mai\  &  Fire  where  it  is  made.     S.  C. 
Ins.  Co.,  5  Bobinson's  La.  B.  423 ; 


82  OP  THE    CONTRACT    OF   INSURANCE.  [CHAP.  I. 

in  the  policy  indicates  the  interest  of  another,  it  is  not  permitted 
to  apply  the  contract  to  the  interest  of  another  part-owner,  for 
whom  he  is  not  a  trustee.^ 

The  rule  is  the  same  in  respect  to  the  subject  insured.  A  policy 
on  "fixtures"  cannot  be  applied  to  movable  furniture,  upon  parol 
evidence  of  an  intention  that  it  should  be  so  applied.^ 

Where  a  reinsurer  agreed  to  "  reinsure  to  a  certain  amount,  and 
make  good  all  loss  or  damage"  to  an  underwriter  against  his  risk 
on  a  fire  policy,  whereby  a  greater  amount  had  been  insured  by 
him,  the  court  refused  to  admit  testimony,  that,  according  to  usage, 
the  reinsurer  was  liable  to  make  good  only  such  proportion  of  the 
loss  as  the  amount  reinsured  bore  to  that  originally  insured  ;  such 
evidence  being  contradictory  to  the  indisputable  sense  of  the  policy 
of  reinsurance.^ 

A  policy  being  on  "coffee  and  other  goods  without  exception, 
either  on  board  the  J.  S.  or  in  store  No.  37,"  &c.,  parol  evidence 
was  held  not  to  be  admissible  for  the  purpose  of  proving  that  the 
policy  was  intended  to  be  applicable  only  to  such  goods  in  No.  37 
as  were  not  insured  in  a  prior  policy,  on  the  ground  that  such  evi- 
dence would  be  contradictory  to  the  written  contract.^ 

123.  A  court,  in  selecting  among  different  meanings  of  which 
the  phraseology  is  susceptible,  ivill  avoid  such  as  are  absurd  or 
lead  to  iinreasonahlc  or  inconvenient  consequences.^ 

124.  The  predominant  intention  of  the  -parties  in  a  contract  of 
insurance  is  indemnity,  and  this  intention  is  to  he  kept  in  view  and 
favored  in  putting  a  construction  upon  the  policy. 

125.  In  determining  the  construction  of  written  instruments 
consisting  of  a  printed  form,  the  blanks  in  which  are  filled  in  manu- 
script, as  is  usual  with  policies  of  insurance,  "  the  tvords  superadded 

1  Finney  v.  Bedford  Com.  Ins.  Co.,  1  Sandf.  137  ;  Mutual  Safety  Ins.  Co. 
8  Mctc.  348 ;  Cookcndorper  v.  Pres-     v.  Hone,  2  Comst.  235. 

ton,  4  Howard,  (U.  S.)  11.  31 7  ;  United        4  Stacey  v.  Franklin  Fire  Ins.  Co., 

States  V.  McDaniel,  7  Peters's  S.  C.  2  Watts  &  Serg.  506. 

Rep.  1 .  5  Kyre  v.  Marine  Ins.  Co.,  5  "Watts 

2  Holmes  V.  Charlestown  Mar.  &  &  Serg.  116;  and  sec  1  Greenl.  Ev. 
Fin;  Ins.  Co.,  10  Mete.  211.  §  288 ;  Emcrigon  on  Ins.  c.  1,  sect.  vii. 

3  Hone  V.  Mutual  Safety  Ins.  Co.,  §§  3,  4. 


SECT.  XIII.]     LEADING   PRINCIPLES   OF  CONSTRUCTION.  83 

in  writing  are  entitled  to  have  a  greater  effect  attributed  to  them 
than  the  printed  words,  and  may  supersede  them,  inasmuch  as  the 
written  words  are  the  immediate  language  and  terms  selected  by 
the  parties  themselves  for  the  expression  of  their  meaning."  ^ 

"As  where  the  word  'ship'  is  written  in  the  margin  of  a  policy  ; 
or  'freight,'  or  'goods  ; '  the  general  terms  of  the  policy,  applica- 
ble to  other  subjects  besides  the  particular  one  mentioned  in  the 
margin,  are  thereby  considered  as  narrowed  in  point  of  construc- 
tion to  that  one."  ~ 

126.  Extrinsic  evidence  may  be  introduced  to  explain  ambigui- 
ties and  ivords  and  phrases  of  indeterminate  meaning,  in  policies 
of  insurance,  upon  the  same  principles,  and  subject  to  the  same 
rules,  that  are  applicable  to  other  written  contracts.^ 

127.  A  written  contract  is  presumed  to  take  effect  at  its  date,  if 
nothing  to  the  contrary  appears  upon  its  face,  but  it  may  be  proved 
by  the  testimony  of  witnesses  that  it  was  delivered  and  took  effect 
on  a  day  subsequent^ 

An  instrument  is  of  no  force  so  long  as  it  remains  in  the  hands 
of  the  obligor,  and  not  actually  or  constructively  delivered  ;  and 
contracts  are  often,  perhaps  most  frequently,  so  worded,  as  not  to 
be  inconsistent  with  the  fact  of  their  delivery  on  a  day  different 
from  the  date.^ 

128.  So  it  may  be  proved  aliunde,  that  a  policy  was  executed 
on  a  day  subsequerit  to  the  date  which  it  bears.^ 

129.  In  construing  all  written  documents,  and  a  policy  of  insur- 

1  Lord  Ellenborough,  in  Kobertson  Clark  v.  Baker,  11  Mete.  580  ;  Eaton 
V.  French,  4  East,  130  ;  S.  P.  Coster  v.  Smith,  20  Pick.  150 ;  Emerigon  on 
r.  Phoenix  Ins.  Co.,  2  Wash.  C.  C.  Ins.  c.  1,  sect.  vii,§4.  Instruments  are 
Rep.  51 ;  Wallace  v.  Insurance  Co.,  to  be  construed  with  reference  to  the 
4  Louisiana  R.  289  ;  Delonguemere  u.  "surrounding  circumstances."  His- 
Tradesmen's  Ins.  Co.,  2  Hall's  R.  589.  cocks  v.  Hiscocks,  5  Mees.  &  W.  363  ; 

2  4  East,  140.     See  also  Robinson  Place  v.  Delegal,  6  S.  C.  492. 

V.  Tobin,  1  Stark.  336  ;  Marshall's  Ins.  4  Stone  v.  Bale,  3  Lev.  348 ;  Lorent 
by  Condy,  304,  305;  1  Greenl.  Ev.,  v.  S.  C.  Ins.  Co.,  1  Nott  &  McCord, 
ed.  1842,  p.  317,  §  278.  505. 


3  See  1  Greenl.  on  Ev.,  §§  287,  288 
Peisch  V.  Dixon,  1  JVIason's  Rep.  10 
Preston  v.  Greenwood,  4  Doug.  28 


5  See  Jackson  v.  Bard,  4  Johns  R. 
230. 

6  Hall  V.  Cazenove,  4  East,  477. 


84  OF  THE  CONTRACT  OF  INSURANCE.       [CHAP.  I. 

ance  no  less  than  others,  the  consiruciion  of  particular  parts  may 
be  determined  by  the  subject-matter  of  the  writing. 

Thus,  where  liberty  was  given  to  cruise  six  weeks,  Lord  Mans- 
field ruled,  merely  in  consideration  of  the  subject-matter  of  the 
policy,  that  this  meant  six  consecutive  weeks,  without  recurrence 
to  any  testimony  as  to  usage,  or  common  understanding  of  this 
language,  as  influencing  the  construction. ^ 

130.  The  literal  and  more  obvious  meaning  of  a  clause  may  be 
controlled  by  other  parts  of  a  policy  or  other  written  instrument, 
talking  the  whole  together,  or  by  other  documents  referred  to  in  it. 

Thus,  in  an  action  on  a  policy  "  at  and  from  London  to  all 
ports  and  places  on  this  side  and  on  the  other  side  of  the  Cape  of 
Good  Hope,  forwards  and  backwards  at  sea,  at  all  times,  on  all 
services,  and  in  all  ports  and  places,  until  the  ship's  arrival  back 
again  at  her  last  station  of  discharge  at  Blackwali  or  Deptford, 
upon  any  kind  of  goods  in  the  Brunswick,  as  interest  might  appear, 
beginning  the  adventure  upon  said  goods  from  the  loading  thereof 
on  board  the  said  ship  at  London."  Sir  J.  Mansfield  ruled,  "  that 
these  words,  though  literally  applying  only  to  goods  laden  in 
London,  must  be  intended  to  apply  to  any  goods  brought  back  to 
London,  though  they  were  not  the  same  goods."  ^ 

So,  a  fire  policy,  whereby  a  building  was  expressed  to  be  in- 
sured to  the  amount  of  seven  eighths  of  its  value,  referred  to  the 
statute  chartering  the  company  by  which  it  was  issued,  and  its  by- 
laws, as  governing  its  construction,  both  of  which  restricted  the 
amount  to  be  insured  to  three  fourths  of  the  value  of  the  building 
insured,  the  policy  was  held  to  cover  only  that  proportion.^ 

131.  In  construing  a  contract,  a  provision  whereby  an  obliga- 
tion is  imposed  by  one  party  upon  the  other,  is  to  be  taken  in  the 
sense  in  which  the  other  may  fairly  be  supposed  to  have  under- 
stood it. 

The  underwriters  in  a  fire  policy  inserted  the  condition  follow- 
ing, namely  :  "In  case  the  assured  shall  make  other  insurance  on 


1  iSycrs  V.  iJridgc,  Doug.  529.  ^  Holmes  v.  Cliarlcstown  Fire  Ins. 

2  Grant  v.  Delacour,  1  Taunt.  4CG,     Co.  10  Mctc.  211. 
474. 


SECT.  XIII.]     LEADING   PRINCIPLES    OF    CONSTRUCTION.  85 

the  same  property,  and  shall  not,  with  all  reasonable  diligence, 
give  notice  thereof  to  this  company,  and  have  the  same  indorsed 
on  this  instrument,  or  otherwise  acknowledged  and  approved  by 
them  in  writing,  then  this  policy  to  cease  and  be  of  no  effect." 
The  assured  made  other  insurance  and  gave  notice  of  it  to  the 
company,  whose  secretary  replied  in  writing  acknowledging  the 
receipt  of  the  notice.  Bronson,  J.,  for  the  court,  said:  "The 
assured  could  not  but  understand  from  the  answer,  that  the  notice 
—  or  the  further  insurance,  if  such  be  the  true  reading  of  the 
clause  —  was  'acknowledged  and  approved,'  and  that  nothing 
further  remained  to  be  done."  And  accordingly  it  was  held  that 
the  condition  had  been  complied  with  on  the  part  of  the  assured.^ 
Exceptions  of  risk  are  to  be  taken  most  strongly  against  the 
insurer  for  whose  benefit  they  are  intended.^ 

132.  The  construction  of  ivritttn  instruments  is  subject  to  be 
affected  by  itsage.^ 

133.  The  usages  of  the  trade,  as  already  mentioned,  are  ex- 
pressly included  in  the  policy,  since  the  naming  or  describing  of 
a  voyage  or  other  risJc  comprehends  the  usages  incidental  to  it.^ 
So  the  practice  of  any  trade  is  binding  upon  those  who  employ  a 
a  tradesman.^ 

"Evidence  of  usage  is  received,"  says  Mr.  Justice  Thompson, 
"for  the  sake  of  ascertaining  the  sense  of  the  parties  by  their  con- 


1  Potter  u.  Ontario  &  Liv.  Mut.  Ins.  13  Pick.  175;  Harris  v.  Nichols,  5 
Co.,  5  Hill,  147 ;  and  see  1  Duer,  Mar.  Munf.480 ;  Wigglesworth  v.  Dallison, 
Ins.   200.    Pactionem    obscuram    iis  1  Doug.  190. 

nocere  in  quorum  fuit  potestate  legem  4  Mason  v.  Skurrey,  Park,  Ins.  191 ; 

apertius  conscribere.    Dig.  1.  2,  t.  14.  Col.  Ins.  Co.  v.  Catlett,  12  Wheat.  383  ; 

And  see  1  Greenl.  Ev.  282.  Noble   v.   Kennoway,  1  Doug.  492 ; 

2  Blachett  v.  Royal  Exch.  Ass.  Co.,  Caldwell  u.  St.  Louis  Perpetual  Ins. 
2  Crompton  &  Jervis,  244.     See  also  Co.,  1  Rob.  La.  R.  85. 

Palmer  v.  Warren  Ins.  Co.,  1  Story,  5  Savill  v.  Barchard,  4  Esp.  53.    So 

360;  Donnell  v.  Col.  Ins.  Co.  2  Sum-  also  of  any  transaction  implicated  in 

ner,  36 G ;  Bullen  v.  Denning,  5  D.  &  the  contract.     Cookendorfer  v.  Pres- 

C.  842;  The  Earl  of  Cardigan  v.  Ax-  ton,  4  Howard,  U.  S.  Rep.  317,  as  to 

mitage,  2  B.  &  C.  197.  demand  and  notice  on  a  note.     The 

3  See  cases  infra.  Also  1  Greenl.  doctrine  is  a  familiar  one  in  jurispru- 
Ev.  §  292 ;  also  Macomber  v.  Parker,  dence. 

VOL.    I.  8 


86  OF  THE   CONTRACT   OF   INSURANCE.  [CHAP.  I. 

tract  made  with  reference  to  such  usage,  for  the  custom  then  be- 
comes part  of  the  contract."  ^ 

Mr.  Justice  Sewall  says,  that,  in  giving  a  construction  to  poli- 
cies, "there  is  more  than  an  ordinary  reference  to  established 
usages,  and  those,  when  ascertained  and  found  suitable  applica- 
tions of  general  principles,  or  not  inconsistent  with  them,  or  with 
the  tenor  of  the  contract,  are  considered  as  authoritative  upon  the 
parties,"  ^  And  for  this  reason  the  contract  of  insurance  is  said 
to  have  a  liberal  construction.^ 

"  In  all  matters  of  trade,"  says  Mr.  Justice  Buller,  "  usage  is  a 
sacred  tiling,'^  and  in  policies  of  insurance,  in  particular,  a  great 
latitude  of  construction,  as  to  usage,  has  been  admitted  ; "  and  he 
even  says,  that  usage  not  only  explains,  but  also  controls  the 
policy,^  which  is  true,  if  "  to  control "  means  to  interpret  the 
policy,  and  give  a  meaning  to  it  different  from  that  imported  by 
the  language  in  its  more  ordinary  acceptation.  The  common  dic- 
tionaries are  resorted  to  for  the  ordinary  meaning  of  words  and 
phrases,  and  a  technical  dictionary  for  the  meaning  in  some  art  or 
trade,  and  the  usage  of  such  art  or  trade  is  proved  by  oral  testi- 
mony for  the  same  purpose.  The  evidence  of  usage  is  introduced 
to  show  what  is  the  ordinary  meaning  of  the  phraseology  in  refer- 
ence to  the  subject-matter  in  a  particular  district  and  between 
parties  in  like  circumstances.  There  is  no  peculiar  sacredness  of 
usage  in  respect  of  commercial  contracts.  The  term  "control," 
in  this  application,  is  likely  to  convey  an  erroneous  meaning ;  and 
such  erroneous  meaning  was  obviously  intended  by  Mr.  Justice 
Buller,  if  he  used  the  phraseology  reported,  for  it  contrasts  "to 
control"  with  "to  explain,"  whereas  the  doctrine  on  the  subject 
is,  that  such  extraneous  evidence  can  be  introduced  for  no  other 
purpose  than  to  explain  what  is  written.  Evidence  of  usage 
cannot  be  admitted,  to  control  what  is  written,  in  contrast  with 

'  Renncr  v.  Bank  of  Columbia,  9  3  Coggeshall  t\  American  Ins.  Co., 

Wheat.  581.   Sec  2  Salk.  44.3  ;  2  Doug.  3  Wend.  283. 

510;  1  Vcs.  sen.  457  ;  7  Cowen,  202;  4  Newman  v.  Cazalet,  Park,  630. 

3  Stark.  Ev.  1034.  5  Long  v.  Allen,  Park,  589 ;  Marsh. 

3  Clark  V.  United   Marine  &  Fire  2d  ed.,  600;  4  Doug.  276. 
Ins.  Co.,  7  Mass.  K.  3G5. 


SECT.  XIII.]     LEADING   PRINCIPLES   OF   CONSTRUCTION.  87 

explaining  it,  since  courts  not  unfrequently  pronounce  the  mean- 
ing of  the  parties  to  be  so  plain,  on  the  face  of  the  instrument,  as 
to  exclude  all  evidence  to  the  contrary.  Therefore,  judges  often 
say  that  evidence  aliunde  is  admissible  in  certain  cases  "to  ex- 
plain," but  they  do  not  say  it  is  so  "  to  control,"  what  is  written.^ 
"I  know  of  no  rule  better  established,"  says  Mr.  Justice  Kent, 
"  than  that  parol  evidence  shall  not  be  admitted  to  disannul  or 
substantially  vary,  or  extend,  a  written  instrument."  ^ 

134.  A  usage,  in  order  to  affect  the  parties  to  a  contract,  must 
be  conformable  to  law.  "  The  usage  of  no  class  of  citizens  can 
be  sustained  in  opposition  to  the  principles  of  law."  ^ 

135.  A  usage,  in  order  to  affect  a  contract,  must  be  definite, 
and  brought  home  to  the  hnowledge  of  the  party  to  be  affected ;  or 
from  its  being  well  known,  or  from  the  particular  circumstances, 
there  must  be  ground  to  presume  that  he  had  notice  of  it,  or  that 
it  was  his  concern  to  inform  himself  of  it,  and  not  the  duty  of  the 
other  party  to  inform  him.* 

136.  A  usage,  in  order  to  its  being  obligatory,  must  be  reason' 
ablc,^  for  the  courts  will  not  hold  parties  to  be  bound  by  futile  or 
absurd  practices,  however  uniform  and  well  known. 

137.  A  usage,  in  order  to  its  affecting  the  parties  to  a  policy, 
must  appear  to  be  applicable  to  insurance. 

It  was  proved  to  have  been  usual,  in  the  transportation  on  the 

1  So  per  Story  in  the  Reeside,  2  also  Ougier  v.  Jennings,  1  Camp.  505, 
Sumner,  567.  n. ;  Barney  v.  Coffin,  3  Pick.  115  ;  Mc- 

2  New  York  Ins.  Co.  v.  Thomas,  3  Gregor  v.  Ins.  Co.  of  Penn.,  1  Wash. 
Johns.  Cas.  1.  See  also  Mumford  v.  C.  C.  R.  39;  Eyre  v.  Marine  Ins.  Co., 
Hallett,  1  Johns.  433  ;  Cheriot  v.  Bar-  6  Whart.  249 ;  S.  C,  5  Serg.  &  Watts, 
ker,  2  Johns.  44 G  ;  Hogan  t'.  Delaware  116;  Robertson  v.  AVestern  Fire  & 
Ins.  Co.,  1  Wash.  C.  C.  R.  419 ;  2  id.  Mar.  Ins.  Co.,  19  La.  R.  227. 

4 ;  Vandervoort  v.  Smith,  2  Caines,  *  Rogers  v.  Mechanics'  Ins.  Co.,  1 

155;  Higginson  v.  Dall.  13  Mass.  R.  Story's  R.  603  ;  Leach  v.  Perkins,  17 

96.  Maine,  462;  Snietz  t?.  Kennedy, Riley, 

3  Homer  v.  Dorr,  10  Mass.  R.  26.  218;  Hermann  w.  Western  F.  &  Mar. 
See    Bryant  v.   Commonwealth  Ins.  Ins.  Co.,  15  La.  R.  517. 

Co.,  6  Pick.  131,  where  it  was  held  5  Per  Shaw,  C.  J.,  Macy  r.  Whaling 
that  a  usage  for  the  master  to  sell  Ins.  Co.,  9  Mete.  354 ;  Leach  v.  Per- 
the  cargo,  without  necessity  for  so  kins,  17  Maine,  462;  Crofts  v.  Mar- 
doing,  would  be  an  illegal  one.     See  shall,  7  C.  &  P.  597. 


88  OF   THE   CONTRACT   OF   INSURANCE.  [CIIAP.  I. 

route  for  which  an  insurance  on  cargo  was  made,  to  carry  articles 
of  the  same  kind  on  deck,  but  this  was  held  not  to  affect  the  lia- 
bility of  the  insurers,  it  being  shown  that  the  ship-owner  was  liable 
in  practice  for  a  loss  of  the  goods  so  carried.  That  is,  the  usage 
though  proved  did  not  extend  to  the  liability  of  the  insurers.^ 

So  under  a  policy  on  "copper"  from  New  York  to  Taunton,  a 
part  of  which  was  carried  on  deck  and  a  part  in  the  hold,  it  was 
proved  to  be  customary  to  carry  the  article  on  deck,  but  the  insur- 
ers were  held  not  to  be  liable  for  the  loss  of  the  part  so  carried,  as 
the  case  itself  showed  it  not  to  be  the  uniform  practice  to  carry  it 
on  deck,  and  the  usage  proved  was  accordingly  held  not  to  be 
applicable,  for  the  purpose  of  affecting  the  liability  of  the  under- 
writers.^ 

But  where  the  usage  for  an  article  to  be  on  deck  is  uniform,  or 
it  is  invariably  on  deck  under  given  circumstances,  the  policy  will 
be  subject  to  the  usage. 

Thus,  under  a  policy  upon  "catchings"  in  a  whaling  voyage, 
it  was  proved  to  be  a  general  and  uniform  usage  to  retain  the 
"  blubber  "  on  deck,  while  the  oil  was  being  tried  out,  and  Judge 
Story  ruled  that  upon  such  usage  the  underwriters  were  liable  for  a 
loss  upon  the  "catchings,"  while  in  this  state,  on  deck."^ 

It  was  remarked  in  one  of  the  above  cases,^  that  it  had  not  been 
proved  that  insurers  had  ever  paid  any  loss  on  the  article  in  ques- 
tion, namely,  copper,  carried  upon  deck  on  the  same  passage. 
But  such  evidence  could  not  have  been  necessary  to  fix  the  liabi- 
lity upon  the  underwriters,  for  if  a  uniform  usage  to  stow  the  arti- 
cle on  deck,  exclusive  of  any  other  way  of  stowing  it,  had  been 
proved,  the  insurers  would  have  been  responsible,  upon  the  ordi- 
nary rule  as  to  usage,  whether  any  loss  had  ever  been  paid  in  such 
a  case  or  not,  at  least  unless  it  had  been  proved  to  have  been  so 
carried  at  the  risk  of  the  ship-owners.^ 

1  Gould  V.  Oliver,  2  Man.  &  G.  208  ;  4  Taunton  Copper  Co.  v.  Merchants' 
S.  C,  4  Bing.  N.  C.  134.  Ins.  Co.,  22  Tick.  108. 

2  'J  aunton  Copper  Co.  i-.  Merchants'  5  in  Gould  v.  Oliver,  2  Man.  &  G. 
Ins.  Co.,  22  Tick.  108.  208,  it  was  proved  to  be  usual  to  carry 

8  Ilogcrs  V.  Mechanics'  Ins.  Co.,  1  apartof  a  full  cargo  of  lumber  on  deck 
Story's  11.  603.  on  board  of  vessels  laden  at  Quebec 


SECT.  XIIL]      leading   PHINCIPLES    OF   CONSTRUCTION.  89 

In  a  Louisiana  case,  on  the  question  as  to  a  usage  for  freight 
and  passenger  steamboats,  on  their  passages  on  the  Mississippi,  to 
take  vessels  in  tow,  it  was  proved  that  steamboats  did  take  ves- 
sels in  tow,  but  it  does  not  appear  that  it  was  proved  under 
what  particular  circumstances  this  was  done,  nor  that  it  was 
uniformly  done  in  the  circumstances  of  the  case  before  the  court ; 
it  was  held  that  no  usage  was  proved  whereby  the  underwriters 
were  affected,  or,  in  other  words,  that  no  such  usage  of  that  navi- 
gation was  shown.  Mr.  Justice  Slidel,  in  giving  the  opinion  of 
the  court,  laid  stress  upon  the  fact  that  no  evidence  was  given 
that  a  loss  consequent  upon  such  towing  had  been  paid  by  under- 
writers, or  any  such  usage  recognized  by  them.^ 

In  this  case,  as  well  as  that  in  Massachusetts  above  cited,  the 
evidence  of  usage  was  insufficient,  and  the  defect  might  have  been 
supplied  by  further  evidence  of  a  practice  to  settle  losses  by  rea- 
son of,  or  notwithstanding,  such  towing.  But  this  would  by  no 
means  show  that  such  acquiescence  or  recognition  on  the  part  of 
underwriters  was  necessary  in  order  to  establish  a  usage  of  the 
navigation  and  fix  a  liability  upon  them. 

138.  No  particular  period  is  requisite  to  the  establishment  of  a 
usage  so  as  to  affect  contracts.  The  period  during  which  it  has 
existed,  is  one  of  the  grounds  of  a  conclusive  presumption  of  its 
being  known  to  parties. 

"The  true  test  of  a  usage,"  say  the  Supreme  Court  of  New 
York,  "is  its  having  existed  a  sufficient  length  of  time  to  have  be- 
come generally  known."  ^ 

To  make  a  usage  obligatory  on  the  parties,  "  it  should,"  says 
Mr.  Justice  Story,  "  be  so  well  settled,  that  persons  engaged  in  a 
trade  must  be  considered  as  contracting  with  reference  to  it."  ^ 

Where  a  trade  had  existed  and  been  carried  on  in  the  same 

for  Europe,  but  that  it  was  also  the        2  Smith  i-.  Wright,  1   Caines,  45. 
practice  for  the  owner  of  the  ship  to     See  also  Renner  v.  The  Bank  of  Co- 
be  answerable  to  the  shipper  for  any     lumbia,   9    Wheat.    581,    opinion   of 
part  of  the  deck  load  washed  over-    Thompson,  J. 
board  or  jettisoned.  3  Trott  v.  Wood,  1  Gall.  443. 

1  Hermann  v.  Western  Fire  &  Mar. 
Ins.  Co.,  15  La.  R.  517. 

8* 


90  OF   THE   CONTRACT   OF   INSURANCE.  [CIIAP.  I. 

manner  for  three  years,  and  another  similar  trade  had  been  carried 
on  in  the  same  manner  for  many  years,  it  was  held  to  constitute  a 
usage.  And  Lord  Mansfield  said,  "  It  is  no  matter  if  the  usage 
has  only  been  for  a  year."  ^ 

That  is,  it  is  not  indispensably  requisite  that  the  usage  should 
have  existed  more  than  a  year,  and  if  it  has  existed  for  that  time, 
it  will  not  therefore  necessarily  affect  all  persons  ;  for  one  usage 
may  obtain  more  publicity  in  a  year  than  another  in  five  or  ten 
years.  So  a  trade  may  have  been  carried  on  but  for  a  year,  and 
during  the  whole  of  that  time  have  been  carried  on  in  the  same 
way,  and  therefore  an  insurance,  or  any  contract  relating  to  it, 
will,  of  itself,  import  that  it  is  conducted  in  that  manner ;  more 
especially  when  another  similar  trade,  as  in  the  case  before  Lord 
Mansfield  above  referred  to,  bas  been  so  conducted  for  many  years. 
Many  circumstances  may  affect  the  period  of  the  duration  of  a 
trade  requisite  in  order  that  a  knowledge  of  it  shall  be  imputed  to 
a  party.  The  question  is  usually  one  of  fact  more  than  of  doc- 
trine. 

139.  Occasional  instances  will  not  constitute  a  usage  of  which 
parties  are  presumed  to  have  notice. 

That  vessels  on  a  voyage  from  Liverpool  to  Jamaica  sometimes 
stopped  at  the  Isle  of  Man  was  considered  as  not  constituting  a 
usage  so  to  do.^ 

140.  A  usage  may  be  local  and  confined  to  the  particular  place 
where  a  contract  is  made,  or  may  be  coextensive  with  a  district  or 
territory,  or  be  general  in  respect  to  the  subject-matter. 

Mr.  Justice  Story  says,  that  "  the  usage  or  custom  of  a  particu- 
lar port,  in  a  particular  trade,  is  not  such  a  custom  as  the  law 
contemplates  to  limit  or  control  or  qualify  the  construction  of  con- 
tracts of  insurance.  It  must  be  some  known  general  usage  or 
custom  in  the  trade,  applicable  and  applied  to  all  the  ports  of  the 
State  where  it  exists,  and  from  its  character  and  extent  so  notori- 

1  Noble  V.  Kcnnoway,  1  Doug.  510.  Townson,  Millar's  Ins.  418  ;  Taunton 
Sec  also  Bentaloe  v.  Pratt,  Wallace's  Copper  Co.  v.  Merchants'  Ins.  Co.,  22 
R.  01.  See  also  Winsor  v.  Dillaway,  Pick.  108  ;  Hermann  u.  Western  Fire 
4  Mete.  22.'f.  &  Mar.  Ins.  Co.,  15  La.  K.  517. 

2  Marshall's  Ins.  18C;  Salisbury  v. 


SECT.  XIII.]     LEADING   PRINCIPLES   OF   CONSTRUCTION.  91 

ous,  that  all  contracts  of  insurance  in  that  trade  nnust  be  presumed 
to  be  entered  into  by  the  parties  with  reference  to  it  as  a  part  of 
the  policy."  ^ 

But  the  fact  that  a  usage  extends,  or  does  not  extend,  through- 
out a  State,  cannot  be  a  material  test.  The  uniform  prevalence 
of  a  usage,  and  its  being  notorious  throughout  extensive  parts  of 
two  States,  might  be  as  good  ground  for  imputing  a  knowledge  of 
it  to  a  party,  as  prevalence  throughout  a  State.  The  judge  pro- 
bably had  in  mind  voyages  between  ports  that  were  at  a  great 
distance  from  each  other.  But  voyages  between  neighboring  ports 
may  establish  a  usage  of  their  trade  so  far  as  parties  could  be  pre- 
sumed to  have  notice  of  it ;  still  the  question  may  arise,  how  far, 
and  under  what  circumstances,  persons  not  concerned  in  such  trade 
shall  be  presumed  to  have  notice  of  it. 

The  usage  of  a  single  institution,  as  a  bank,  may  affect  a  per- 
son who  does  business  at  the  same,  where  he  has  notice,  or  there 
is  ground  of  a  presumption  that  he  has  notice  of  it.^  A  knowledge 
of  the  usage  of  the  East  India  Company  is  imputed  to  the  owners 
of  ships  chartered  by  that  company.^ 

So  a  knowledge  of  the  usages  of  a  public  office,  where  indivi- 
dual insurers  are  in  the  practice  of  underwriting,  is  imputed  to 
those  who  are  in  the  habit  of  transacting  business  at  such  office.'* 

Even  the  practice  of  an  individual  may  have  the  effect  of  a 
usage  in  respect  of  those  doing  business  with  him  at  his  place  of 
business,  and  who  can  be  considered  to  be  bound,  under  the  cir- 
cumstances, to  take  notice  of  his  practice.^ 

In  a  case  between  a  plaintiff  resident  at  Plymouth,  in  England, 
and  an  underwriter  at  Lloyd's,  in  London,  Lord  Tenterden,  speak- 
ing of  a  usage  at  Lloyd's,  said  :  "  The  usage  in  a  particular  place, 
or  of  a  particular  class  of  persons,  cannot  be  binding  upon  other 

1  Rogers  v.  Mechanics'  Ins.  Co.,  1  3  Grant  v.  Delacour,  1  Taunt.  466. 
Story's  R.  603.  4  Gabay  v.  Lloyd,  3  Barn.  &  Cress. 

2  City  Bank  i-.  Cutter,  3  Pick.  414.  763  ;  and  5  Dowl.  &  Ryl.  641 ;  Ougier 
See  also  Salvador  v.  Hopkins,  3  Burr.  v.  Jennings,  1  Camp.  505,  n.,  relating 
1707;  Gregory  v.  Christie,  3  Doug,  to  the  usage  at  Lloyd's. 

419  ;  Farquharson  v.  Hunter,  Park,        5  Loring  v.  Guruey,  5  Pick.  15. 
Ins.  84 ;  Grant  v.  Paxton,  1  Taunt.  463. 


92  OF   THE   CONTRACT   OF  INSURANCE.  [CHAP.  I. 

persons,  unless  the  other  persons  are  actually  acquainted  with  the 
usage  and  adopt  it.  Merchants  residing  in  London,  and  making 
insurances  there,  may  reasonably  be  supposed  to  be  acquainted 
with  that  usage  and  to  act  upon  it.  But  there  is  nothing  in  the 
case  to  raise  such  a  presumption  against  the  present  plaintiff." 
And  the  other  judges  concurred  in  this  opinion.^ 

It  appears,  therefore,  that  the  territorial  extent  of  a  usage,  and 
the  number  of  persons  who  observe  it,  are  grounds  of  inference, 
that  those  having  transactions  in  a  business  or  trade,  are  apprised 
of  it,  but  not  the  only  evidence,  for  the  fact  of  its  beirrg  known 
to  a  party,  or  any  grounds  of  presumption  that  it  is  so,  may  be 
proved.^ 

141.  It  follows  from  the  fact  that  a  usage  may  be  local,  that 
contracting  parties  are  not  bound  by  the  usages  of  other  places 
than  that  where  the  contract  is  made,  or  to  which  it  has  reference. 

The  construction  of  a  fire  policy  on  a  vessel  that  was  being 
built  in  Baltimore,  was  held  not  to  be  subject  to  the  usages  of 
other  ports  of  the  United  States.^ 

A  policy  underwritten  in  New  York  on  a  Rhode  Island  ship 
and  cargo,  for  a  whaling  voyage  in  the  Pacific,  was  held  not  to  be 
governed  by  the  usage  of  Nantucket  as  to  similar  voyages.* 

142.  Common  words  and  phrases  in  contracts  are  presumed  to 
be  used  in  their  ordinary  meaning,  unless  they  are  otherwise  de- 
fined, and  this  meaning  is  presumed  to  be  known  to  the  courts,  as 
well  as  that  of  all  technical  legal  terms  and  phrases.  There  is  no 
occasion,  therefore,  for  evidence  of  such  meaning. 

Where  it  is  suggested  that  a  common  word  or  phrase  of  the 
vernacular  language  has,  in  a  contract,  the  peculiar  meaning  of 
some  science,  art,  or  business,  though  the  meaning  must,  in  such 


1  liartlctt  V.  Pentland,  10  B.  &  C.  7G0;  Russell  v.  Bangley,  4  B.  &  A. 
760 ;  S.  C,  1  L.  &  W.  235.  See  also  395  ;  Scott  v.  Irving,  1  B.  &  Ad.  605. 
Russell  r.  Bangley,  4  B.  &  A.  395.  3  Mason  v.  Franklin  Fire  Ins.  Co., 
Sec  also  Gabay  v.  Lloyd,  3  B.  &  C.  12  Gill  &  Johns.  4G8.  See  also  Gabay 
793  ;  S.  C.  5  D.  &  11.  611 ;  also  Law-  v.  Lloyd,  and  other  cases,  supra,  No. 
rcncc  V.  Aberdcin,  5  B.  &  A.  107;  140, 

and  Scott  v.  Erving,  1  B.  &  Ad.  G05.  ■«  Child  v.  Sun  Mutual  Ins.  Co.,  3 

2  Bartlett  v.  Tenlland,  10  B.  k.  C.  Sandf.  26. 


SECT.  XIII.]     LEADING   PRINCIPLES   OF   CONSTRUCTION.  93 

case,  as  in  others,  be  determined  by  usage,  yet  as  local  and  pecu- 
liar usages  are  not  presumed  to  be  known  to  the  courts,  they  may 
be  proved  by  extrinsic  evidence,  upon  the  same  principle  on  which 
the  contract  is,  in  other  respects,  affected  by  usages  to  which  it 
has  explicit  or  implied  reference. 

143.  So  also,  if  a  word  or  phrase  is  used  not  belonging  to  the 
common  vernacular  language,  its  meaning  must  be  determined  by 
evidence  introduced  for  the  purpose.^ 

144.  Jurisprudence  abounds  in  illustrations  of  the  meaning  of 
words  and  phrases  used  in  contracts  being  determined  by  evidence 
of  usage. 

Where  the  assured  undertook  that  his  vessel  should  have  a  sea- 
letter  on  board  ;  to  ascertain  what  the  parties  meant,  or  must  be 
supposed  to  have  meant,  by  a  "  sea-letter,"  it  was  necessary  to 
resort  to  the  public  statutes  and  treaties,  or  the  common  usage 
among  men  of  business.^ 

Where  a  policy  provided  that  no  other  than  a  total  loss  should 
be  paid  on  "  roots,"  and  a  loss  which  was  not  total  happened  on 
a  quantity  of  sarsaparilla,  the  court  was  of  opinion  that  it  should 
be  paid  notwithstanding  it  came  literally  within  the  exception,  it 
being  shown  that  the  provision  was  introduced  in  reference  to 
trade,  principally  from  Connecticut  to  the  West  Indies,  in  ''beets" 
and  other  garden  roots,  which  were  green  and  perishable,  whereas 
the  sarsaparilla,  being  a  dry,  hard  root,  is  less  liable  to  decay, 
from  its  internal  qualities,  than  merchandise  in  general,  and  had 
never  been  considered,  in  practice,  as  one  of  the  articles  excepted 
in  the  policy.^ 

1  1  Powell  on  Contracts,  403 ;  1  T.  learnedly,  lucidly,  and  -with  succinct 

R.  701 ;  2  T.  R.  436  ;  3  T.  R.  525  ;  accuracy. 

2  M.  &  S.  363 ;  5  B.  &  Aid.  416  ;  8  2  Sleght  v.  Rhinelande  r,  1  Johns. 

B.  &  C.  575 ;  Eaton  v.  Smith,  20  Pick.  192  ;  Sleght  v.  Hartshorne,  2  id.  531. 

R.  150;  Finney  v.  Bedford  Com.  Ins.  3  Coit  v.    Commercial  Ins.  Co.,  7 

Co.,  8  Mete.  R.  348  ;  Hone  v.  Mutual  Johns.   385.     The  memorandum  in 

Safety  Ins.  Co.,  1  Sandf.  137.     See  this  policy  was,  that  "roots  and  all 

also  1  Greenl.  Ev.  c.  15,  where  the  other  articles  perishable  in  their  own 

admissibility  of  parol  evidence  to  de-  nature,"  should  be  free  from  average 

termine  the  construction  of  writings  is,  unless  general,  and  it  would  not  seem 

as  is  usual  with  the  author,  treated  to  be  a  forced  construction  to  qualify 


94  OF  THE   CONTRACT   OF   INSURANCE.  [CHAP.  I. 

A  question  arose  under  the  exception  of  partial  loss  on  "  corn,^^ 
whether  "rice"  was  comprehended  in  that  term,  and  Sir  James 
Mansfield  said,  that  no  one  reading  the  policy  would  be  apprised 
that  rice  was  intended  ;  yet,  "  if  a  clear  usage  to  the  contrary 
were  shown,"  rice  might  be  considered  as  comprehended  in  the 
word  "  corn."  ^ 

In  a  policy  on  "/Mr^,"  that  word  was  held  to  be  applicable  to 
bears'  skins,  and  those  of  various  other  descriptions,  being  of  a 
kind  chiefly  valuable  as  furs,  and  it  was  held  also,  that,  upon  the 
same  principle,  the  ordinary  sense  of  the  word,  "skins"  would  be 
excluded  in  construing  such  a  policy  ;  and,  though  it  expressly 
exonerated  the  underwriters  from  particular  average  on  "  skins," 
yet  they  might  be,  notwithstanding,  liable  for  a  particular  average 
on  skins,  valuable  chiefly  as  furs.^ 

It  was  ruled  by  Abbott,  C.  J.,  that,  "  cotton  in  bales  "  may  be 
proved  to  mean,  in  trade  between  Liverpool  and  Alexandria,  in 
"  pressed  "  bales.^ 

In  a  policy  upon  a  ship  and  its  furniture,  the  term  "furniture  " 
was  held,  by  virtue  of  usage,  to  include  the  provisions.^ 

A  policy  being  on  a  vessel  for  twelve  months,  "  with  liberty  of 
the  globe,  and,  if  at  sea  at  the  expiration  of  twelve  months,  to 
continue  till  arrival  at  her  port  of  destination  in  the  United  States," 
it  was  held  in  Pennsylvania,  that  according  to  usage,  this  was  a 


the  term  "roots"  by  reference  to  the  cles  previously  enumerated,  nor  can 
other  subjects  of  the  memorandum,  they  repel  the  implication  arising  from 
and  restrain  it  to  such  roots  as  are  the  enumeration  of  them."  The  Com- 
perishable  in  their  own  nature.  This  mercial  Ins.  Co.  of  Charleston,  S.  C, 
would  avoid  the  seemingly  great  lati-  excludes  the  question  made  in  the 
tude  of  construction  in  allowing  a  above  case,  by  excepting  from  parti- 
party  to  prove  by  oral  testimony,  that,  cular  average  "  sarsaparilla  and  other 
as  between  the  parties,  sarsaparilla  is  roots." 

not  a  root.    The  court  was  probably  '  Scott  v.  Bourdillion,  5  B.  &  P. 

prevented  from  resorting  to  the  sub-  213. 

sequent  words,  out  of  respect  to  one  2  Astor  v.  Union  Ins.  Co.,  7  Cowen, 

of  its  former  decisions,  namely.  Bar-  202. 

ker  V.  Ludlow,  2  Johns.  Cas.  289,  in  3  Taylor  v.  Briggs,  2  Car.  &  P.  525. 

which  it  is  said  that  the  "  subsequent  4  Brough  v.  Whitmore,  4  T.  R.  206. 
words  are  not  applicable  to  the  arti- 


SECT.  XIII.]     LEADING  PRINCIPLES   OF   CONSTRUCTION.  95 

trading  voyage,  and  the  phraseology  was  well  understood  to  mean, 
not  that  the  vessel  was,  at  the  end  of  the  twelve  months,  to  be 
destined  directly  to  the  United  States,  but  that  it  might  then  be 
destined  and  would  be  covered  on  a  voyage  to  any  foreign  port 
whatsoever.^ 

In  deciding  on  the  meaning  of  '■'■  frtc  from  average,"  Lord 
Mansfield  referred  to  the  usage  which  had  prevailed  in  adjusting 
losses  as  a  ground  of  construction.- 

So  a  policy  on  ^^ outfits"  of  a  whaling  voyage  was  held  to  be 
applicable  to  one  quarter  of  the  catchings,  on  proof  of  a  usage  to 
that  effect  in  New  Bedford,  where  the  vessel  belonged  and  the 
policy  was  made.^ 

So  a  policy  on  a  "  whaling  voyage  "  was  held  in  New  York,  by 
virtue  of  usage,  to  be  applicable  to  the  taking  of  sea-elephants."* 

So,  under  a  policy  upon  "  cargo,"  common  usage  must  deter- 
mine the  application  of  this  term.^ 

Insurance  was  made  from  New  York  to  Batavia  and  back,  "  on 
goods  out  and  the  proceeds  thereof  home."  The  assured  proposed 
to  prove,  that,  according  to  commercial  usage,  the  term  "proceeds" 
would  apply  to,  and  cover,  the  same  goods  on  the  return  voyage. 
This  testimony  was  rejected  in  the  Supreme  Court,  on  the  ground 
that  it  was  inconsistent  with  the  language  of  the  policy.  In  the 
Court  of  Errors,  seventeen  senators  were  of  opinion  that  evidence 
of  such  a  usage  was  admissible,  and  five  of  a  contrary  opinion  ; 
the  decision  accoi'dingly  being  that  it  was  admissible.^ 

So  the  word  ^'thousand,"  used  in  a  lease  in  reference  to  rabbits, 
may  be  proved  to  mean,  in  the  place  where  the  leased  premises  are 
situated,  twelve  hundred.' 

1  Eyre  v.  Marine  Ins.  Co.,  5  Watts  stopped  the  counsel,  who  was  about 
&  Serg.  116 ;  S.  C,  6  Whart.  247.  to  read  the  definition  in  a  dictionary, 

2  Mason   v.   Skurray,  Marsh.  Ins.  (Entick's,)  saying  it  must  be  left  to 
226.  the  knowledge  of  the  jury.    But  if  the 

3  Macy  V.  Whaling  Ins.  Co.,  9  Mete,  question  were  respecting  an  ancient 
354.  usage,  contemporary  dictionaries  and 

4  Child  V.  Sun  Mutual  Ins.  Co.,  3  other  books  would  be  resorted  to  ne- 
Sandf.  26.  cessarily. 

5  Houghton  V.  Gilbart,  7  C.  &  P.  6  Dow  v.  Whetton,  8  Wend.  160. 
701.    In  this  case  Mr.  C.  J.  Tindal  ^  Smith  y.  Wilson,  3  B.  &  Ad.  728. 


96  OF   THE   CONTRACT   OF   INSUEANCE.  [ciIAP.  I. 

So  a  ^'pocket  of  hops"  has  been  proved  to  mean  one  hundred 
weight.^ 

Under  a  policy  on  freight  from  Van  Diemen's  Land  "to  port  or 
ports  of  lading  in  India,  and  the  Indian  Islands,''  the  vessel  took 
in  a  cargo  at  Mauritius,  and  the  question  arose  whether  this  was 
an  "Indian"  island.  In  geographical  divisions,  it  is  an  African 
island,  but  the  court  held,  that  if,  in  commercial  language,  it  was 
considered  an  "  Indian  "  island,  it  would  be  within  the  voyage 
described  in  the  policy.  That  is,  the  words  of  the  policy  must 
receive  the  construction  given  them  by  commercial  usage.^ 

Where  the  policy  stipulated  for  payment  ninety  days  after  proof 
and  adjustment  of  the  loss,  evidence  of  the  meaning  of  "  proof 
according  to  usage,  was  admitted.  It  was  objected  that  the  policy 
has  implicit  reference  to,  and  in  its  construction  only  comprehends, 
usao-es  of  "  trade  ; "  but  this  objection  was  not  considered  by  the 
court  to  be  well  made.^ 

Insurance  being  made  "  from  London  to  any  port  in  the  Baltic" 
the  vessel  sailed  for  Revel,  in  the  Gulf  of  Finland,  a  distinct  sea 
from  the  Baltic,  according  to  geographers,  but  as  it  was  compre- 
hended in  the  Baltic,  in  commercial  language,  the  court  gave  this 
extent  to  the  term  in  the  policy.'* 

Where  a  policy  was  "  at  and  from  Amelia  Island,"  and  the 
vessel  loaded  at  Tigre  Island,  it  being  customary  for  vessels  nomi- 
nally bound  to  and  from  Amelia  Island  to  discharge  and  load  there, 
the  court  held,  that  taking  a  cargo  on  board  at  Tigre  Island,  and 
sailin"^  from  there,  satisfied  the  terms  of  the  policy  ;^  for,  this  be- 
ing the  voyage  usually  made  by  vessels  said  to  sail  from  Amelia 
island,  must  have  been  the  voyage  intended  in  the  policy. 

The  construction  of  the  policy  was  affected  by  usage,  in  a  case 
where  the  shipper  was  to  pay  for  demurrage,  unless  the  cargo 
should  be  discharged  within  fourteen  days.  Lord  Eldon  said,  "  if 
it  were  It-ft  to  the  coiistmction  of  law,  he  should  be  of  opinion 
that  holidays  were  to  be  included,  but  if  the  fact  was  clearly  made 

1  Spiccr  V.  Cooper,  1  Ad.  &  El.  N.  S.  3  Allegre's  Adm'rs  v.  Maryland  Ins. 
424.  Co.,  6  Harris  &  Johns.  408. 

2  Robertson  v.  Clark,  1  Bing.  445 ;         *  Uhdc  v.  Walters,  3  Camp.  16. 

8  Moore,  022.  ^  Moxon  v.  Atkins,  3  Camp.  200. 


SECT.  XIII.]     LEADING   PRINCIPLES    OF   CONSTRUCTION.  97 

out  that  tlie  fourteen  days  meant  working  clays,"  according  to  usage 
and  common  acceptation,  the  contract  should  receive  that  con- 
struction.^ 

Goods  being  insured  to  Bordeaux,  with  an  agreement  not  to 
abandon  if  the  ship  should  be  ^^  turned  away,'^  the  vessel  was  for- 
bidden by  the  French  government  to  enter  the  Garonne  ;  and  it 
being  agreed  by  the  parties,  with  the  acquiescence  of  the  court, 
that,  by  the  common  understanding,  the  turning  away  contemplated 
by  the  parties  was  a  turning  away  by  blockade,  the  court  did  not 
consider  the  ship  to  be  "  turned  away  "  within  the  meaning  of  the 
policy.^ 

Goods  insured  at  and  from  Lyme,  were  put  on  board  of  the 
vessel  at  Bridport  harbor,  a  member  of  the  port  of  Lyme,  about 
nine  miles  distant  from  that  place.  The  court  said,  if  the  assured 
could  prove  any  usage  for  vessels  to  load  at  Bridport,  under  a 
policy  from  Lyme,  it  might  make  the  insurance  good.  No  such 
usage  could,  however,  be  proved.-^ 

In  the  case  of  a  policy  "  from  New  York  to  the  port  of  Sisal,^' 
there  being  no  "  port,"  in  the  proper  sense  of  the  word,  belonging 
to  Sisal,  as  it  has  no  harbor  or  haven  where  ships  may  lie  in  safety, 
but  they  lie  off  in  an  open  roadstead  while  discharging  and  load- 
ing, the  court  gave  a  construction  according  to  the  fact,  and  con- 
sidered the  voyage  in  the  policy  to  be  a  voyage  to  Sisal,  as  such 
a  voyage  is  ordinarily  performed, 'and  must  have  been  understood 
by  the  parties.*  And  where  the  policy  was  "  from  the  last  j^ort 
of  lading,"  and  the  vessel  completed  her  lading  off  Angostura, 
which  has  properly  no  "  port "  or  harbor,  yet  the  court  decided 
that  it  should  be  considered  the  "  last  port  of  lading,"  within  the 
terms  of  the  policy.^ 

So  an  insurance  of  a  vessel  for  four  months  from  St.  Michael's 
to  ^^  any  port  or  ports,^'  is  held  to  be  equivalent  to  an  insurance 
to  "any  place  or  places,"  and  the  sailing  to  a  place  that  had  no 


1  Cockran  v.  Rotberg,  3  Esp.  121.  "^  De  Longuemere  v.  New   York 

2  Speyer  v.  New  York  Ins.  Co.,  3  Fire  Ins.  Co.,  10  Johns.  120. 

Johns.  88.  5  De   Longuemere   v.   New  York 

3  Constable  v.  Noble,  2  Taunt.  403.  Fire  Ins.  Co.,  10  Johns.  120. 

VOL.    I.  9 


98  OF    THE    CONTRACT    OF    INSURANCE.  [CHAP.  I. 

port,  and  where  vessels  are  discharged  in  an  open  roadstead,  was 
held  to  be  within  the  policy.^ 

It  was  the  uniform  and  well-known  practice  of  the  British  East 
India  Company  to  reserve  in  the  charter-party  the  liberty  of  em- 
ploying the  vessel  on  an  intermediate  voyage  from  one  port  to 
another  in  India.  Accordingly,  under  a  policy  on  a  ship  employed 
by  the  company,  though  nothing  was  said  of  an  intermediate 
voyage  in  the  policy,  yet,  because  the  voyage  was  described  to  be 
an  '•India  voyage,"  it  was  held  that  the  underwriter  should  be 
presumed  to  know  what  was  incident  to  such  a  voyage,  and  that  the 
construction  of  the  contract  should  be  the  same  as  if  liberty  had 
been  expressly  reserved  in  the  policy  to  make  such  intermediate 
voyage.^ 

A  vessel  was  insured  either  "  ivith  or  without  letter  of  marque," 
the  intention  of  course  being  to  have  the  liberty  of  using  it,  but  to 
what  extent,  whether  in  acting  on  the  defensive,  or  in  giving  chase 
to  vessels  that  hove  in  sight,  or  in  cruising,  were  questions  not  set- 
tled by  the  obvious  and  general  import  of  the  words.  Lord  Ellen- 
borough  said  :  "It  may  be  material  to  ascertain  in  what  manner 
parties  to  contracts  containing  this  form  of  words  have  acted  upon 
them  in  former  instances,  and  whether  they  have  obtained,  as  be- 
tween assureds  and  assurers,  any  known  and  definite  import."^ 

Goods  insured  '■'till  they  were  safely  landed  at  Leghorn," 
were  landed  at  the  Lazaretto,  about  half  a  mile  from  the  city  of 
Leghorn,  as  was  customary  in  regard  to  goods  of  the  kind  insured, 
where  a  loss  happened  upon  them  before  the  period  of  quarantine 
had  expired.  Marshall,  C.  J.,  giving  the  opinion  of  the  court : 
"This  cause  may  be  decided  upon  the  usage  found  in  this  case,  a 
usage  of  ancient  date  and  general  notoriety.  When  the  parties 
stipulated  that  the  adventure  should  continue  till  the  goods  were 
landed  in  safety  at  Leghorn,  they  knew  that  the  place  of  landing 
was  the  Lazaretto,  and  that  the  landing  would  be  made  under  the 
direction  and  control  of  the  local  authority.  This,  then,  must  be 
the  landing  contemphited  in  the  policy Had   the  parties 

1  Cockcy  I'.  Atkin.son,2B.  &  A.  460.        3  (J  East,  207,  Tarr  v.  Anderson; 

2  Salvador  v.  lIoi)Ivin.s,  '^  Bur.  1707.     S.  C,  2  Smith,  316. 


I 


SECT.  XIII.]     LEADING   PRINCIPLES    OF   CONSTRUCTION.  99 

intended  to  continue  the  risk  during  the  continuance  of  the  goods 
in  the  Lazaretto,  they  would  have  inserted  in  the  poHcy  words 
ina'nifesting  that  intention."  ^ 

145.  A  distinct,  additional,  independent  stipulation,  not  com- 
prehended or  covered  hy  the  language  of  the  policy,  cannot  he 
introduced  into  it  hy  proof  of  a  usage  : 

As  of  a  usage  to  give  notice  of  the  erection  by  the  assured  of 
new  buildings  near  those  insured,  where  the  policy  contained  no 
provision  which  could  refer  to  such  usage,  or  be  explained  by  it.^ 

Where  goods  were  insured  "  till  landed,"  it  was  proposed  to 
show  that  this  expression  meant  till  the  ship  was  moored  twenty- 
four  hours  in  safety  ;  but  Lord  Kenyon  would  not  permit  it,  be- 
cause it  was  inconsistent  with  the  meaning  of  the  policy,  which 
was  too  clearly  expressed  to  admit  of  any  such  explanation.^ 

Where  a  policy  began  "S.  E.  B.  on  account  of  do 

make  insurance,"  &c.,  it  was  held  that  proof  of  usage  to  consider 
these  blanks  to  be  equivalent  to  the  clause  "for  whom  it  may  con- 
cern," was  not  admissible.* 

Mr.  Chancellor  Walworth  ^  was  of  opinion  that  the  blank  must 
be  considered  as  left  to  be  filled  up  by  the  nominal  assured,  just 
as  a  blank  indorsement  may  be  filled  with  an  order,  assignment, 
guaranty,  &tc.,  according  to  the  character  of  the  instrument  in- 
dorsed. The  judges  of  the  Supreme  Court  and  the  Court  of  Errors 
of  the  State  of  New  York  were  of  opinion  that  the  blank  was  not 
to  be  filled  at  all,  and  that  the  words  "on  account  of"  might  be 
considered  surplusage.  They  put  this  construction  upon  the  in- 
strument itself  as  matter  of  l^w.  But  suppose  it  did  not  so  appear 
from  the  instrument,  then  the  case  would  be  open  to  inquiry  into 
usage  in  similar  cases.  The  inquiry  would  be,  —  What  construc- 
tion is  put  by  usage  upon  a  blank  ? 

In  a  suit  on  a  policy  made  in  New  York,  for  a  particular  ave- 

1  Gracie  v.  Mar.  Ins.  Co.,  8  Cranch,        3  Parkinson  v.  Collier,  Park,  470. 
75.  4  Turner  u.  Burrows,  5  Wend.  541 ; 

2  Stebbins  v.  Globe  Ins.  Co.,  2  Hall's     8  id.  144. 

R.  632  ;  and  see  Pawson  v.  Barnevelt,        5  S,  C.,  in  the  Court  of  Errors,  8 
1  Doug.  12,  and- New  York  Ins.  Co.     Wend.  144. 
V.  Thomas,  supra,  p.  87. 


.^'^ 


100  OF   THE   CONTRACT   OF   INSURANCE.  [CIIAP.  I. 

rao-e  on  goods  by  sea-damage  on  a  voyage  from  Liverpool  to  New 
York,  the  insurers  proposed  to  prove,  that,  by  a  usage  of  the  port 
of  New  York  and  other  ports,  the  production  of  a  report  of  a  sur- 
vey made  on  board  of  the  vessel  by  the  port-wardens,  or  other 
officers  of  the  port,  that  the  goods  were  properly  stowed  and  were 
damaged  on  the  voyage  by  perils  of  the  sea,  was  indispensable  in 
order  to  charge  the  underwriters.  Oakly,  J.  :  "  An  attempt  is 
made  to  introduce  into  the  policy  a  condition  that  the  insurer  shall 
not  be  responsible  unless  such  damage  is  ascertained  in  a  particu- 
lar mode,  and  that,  too,  by  the  act  of  third  persons,  over  whom 
the  assured  has  no  control.  Such  a  condition  would  vary  the 
legal  obligations  of  the  defendants,  as  ascertained  in  the  precise 
language  of  the  policy."  It  was  accordingly  held,  that  proof  of 
^  ^  such  a  usage,  as  an  indispensable  requisite  to  the  assured's  right 
A.'      to  recover  a  loss,  was  inadmissible.^ 

^  ^  Under  a  policy  on  a  voyage  from  St.  Domingo  to  Nantes,  the 

assured  exhibited  a  letter  from  the  master,  saying  he  expected  to 
sail  in  October.  He  sailed  on  the  11th  of  that  month.  Lord 
Kenyon  ruled  that  parol  evidence  was  admissible  to  prove  the 
meaning  to  be  that  he  expected  to  sail  after  the  20th,  or  at  least 
the  15th,  of  that  month.^  Assuming  that  this  was  equivalent,  as 
it  seems  to  be,  to  the  admission  of  the  same  testimony  to  prove 
the  meaning  of  the  same  language  in  the  policy  itself,  it  is  carry- 
ing the  doctrine  of  construction  of  what  is  written  by  parol  testi- 
mony to  a  very  questionable  length. 

•  Rankin  and  Eankia  v.  American        s^hauraud  v.  Angerstein,  Peake's 
Ins.  Co.,  1  Hall,  619.  Cas.  43. 


CHAPTER    II. 

WHO    MAY    BE    INSURED. 

Sect.  1.  Capacity  to  contract.  I  3.  National    character.  —  Domi- 

2.  Alien  enemy.  |  cile. 

SECTION  I.   CAPACITY  TO  CONTRACT. 

146.  Insurance  is  not  distinguished  from  other  contracts,  in 
respect  to  the  ability  of  the  parties  to  contract.  Any  one  capable 
of  binding  himself  by  a  contract  may  he  an  insurer ;  ^  and  in 
general  any  person,  having  an  insurable  interest,  may  become  an 
assured. 

SECTION    II.        ALIEN    ENE3IY. 

147.  No  contract  with  the  subjects  of  a  hostile  state,  or  on 
their  behalf,  is  binding. 

During  a  war,  all  trading  with  the  public  enemy  is  interdicted, 
and  he  is  regarded  as  an  outlaw.^  "No  principle  of  national  or 
municipal  law,"  says  Mr.  Justice  Story,  "  is  better  settled,  than 
that  all  contracts  with  an  alien  enemy,  made  during  a  war,  are 
utterly  void."^ 

Accordingly,  a  contract  made,  during  war,  by  the  subject  of 
one  belligerent  with  that  of  the  other,  cannot  be  enforced,  either 
during  the  war,  or  on  the  return  of  peace.'* 

1  In  England,  tbe  London  and  the  wold  v.  Waddlngton,  15  Johns.  57; 
Royal  Exchange  Assurance  Compa-     16  id.  438. 

nies  have  certain  privileges  as  insur-  ^  Cargo  of  the  Emulous,  1  Gal.  571. 

ers,  which  have  been  complained  of,  See  also  Potts  v.  Bell,  8  T.  R.  548, 

and  considered  to  be  prejudicial  to  and  2  Esp.  612. 

trade.     See  Rep.  Com.  of  H.  of  Com.,  ^  Willison   r.  Patterson,  7  Taunt. 

A.  D.  1810.  438  ;  S.  C,  1  Moore,  133. 

2  The  Hoop,  1  Chr.  Rob.  196  ;  Gris- 

9* 


102 


WHO    MAY   BE   INSUllED. 


[chap.  II. 


148.  It  was  formerly  held,  that  the  contract  of  insurance  might 
he  made  in  favor  of  an  alien  enemy,  and  enforced  in  time  of  war, 
though  it  was  not  the  practice  to  make  the  policy  in  his  name.^ 
The  arguments  in  favor  of  keeping  up  this  commercial  intercourse 
with  the  enemy  were  drawn,  not  from  any  legal  principles,  but 
wholly  from  a  supposed  interest,  the  calculation  being,  that  the 
insurers  would  receive  in  premiums  more  than  they  would  pay  in 
losses.^  Lord  Mansfield  favored  these  insurances  upon  this  ground, 
though  Mr.  Justice  Duller  says,  he  never  could  get  him  to  reason 
upon  their  legality.^ 


1  Planche  v.  Fletcher,  1  Doug.  238  ; 
Gist  V.  Mason,  1  T.  R.  84 ;  Lavabre  t'. 
Wilson,  1  Doug.  271.  Contracts  for 
the  ransom  of  captured  property  were 
another  exception  to  the  general  rule, 
and  after  the  war  of  1756,  between 
England  and  France,  and  during  that 
of  1778,  Frenchmen  maintained  ac- 
tions in  the  English  courts  on  ransom 
bills.  Ricord  v.  Bettenhara,  3  Bur. 
1734;  Cornu  v.  Blackburne,  Doug. 
641.  In  the  former  of  these  actions,  Sir 
William  Blackstone  is  said  to  have 
been  informed  by  several  eminent 
jurists  of  the  Continent,  that  a  similar 
action  would  have  been  maintained  in 
their  courts.  Sir  William  Scott  says, 
that,  "even  in  cases  of  ransoms,  the 
enemy  was  not  permitted  to  sue  in 
his  own  proper  person  for  the  pay- 
ment of  the  ransom  bill.  The  action 
was  brought  by  the  hostage  for  the 
recovery  of  his  freedom."  The  Hoop, 
1  Chr.  Rob.  201.  But  the  above  ac- 
tions, brought  by  Ricord  and  Cornu, 
were  both  brought  in  the  names  of  the 
aliens  Lord  Kenyon  says,  Ricord  ?;. 
Bettcnham  "was  not  brought  until 
peace  was  restored,  which  gets  rid  of 
the  objection"  to  the  plainlid  as  an 
alien  enemy.     Bi-andou  v.  Ncsbilt,  6 


T.  R.  23.  But  the  action  of  Cornu  v. 
Blackburne  was  brought  during  the 
continuance  of  the  war.  In  Henkle 
V.  Royal  Exch.  Ass.  Co.,  1  Vez.  317, 
determined  in  1749,  the  Chancellor 
says,  "No  determination  has  been, 
that  insurance  of  enemy's  ships  dur- 
ing war  is  unlawful,"  though  trade  in 
general,  he  says,  is  so.  The  French 
boasted  that  the  English  had,  during 
the  war  ending  in  1763,  indemnified 
them  by  insurances  for  what  they  had 
lost  by  captures.  2  Valin,  32,  a.  2. 
But  perhaps  the  French  had  again 
indemnified  the  English  insurers  by 
premiums.  Mr.  Marshall,  Vol.  I.  p.  35, 
&c.,  goes  at  some  length  into  the  his- 
tory and  discussion  of  this  practice  of 
insurance  in  behalf  of  enemy  subjects, 
and  on  trade  with  the  enemy.  Mr. 
Duer,  Marine  Insurance,  Vol.1,  p.  463, 
also  gives  a  particular  recapitulation 
and  an  able  exposition  of  this  branch 
of  English  jurisprudence. 

2  Weskett,  tit.  Enemy. 

3  Bell  V.  Gilson,  1  B.  &  P.  345.  It 
is  somewhere  said,  that  when  French- 
men were  insured  in  England,  dur- 
ing a  war  between  the  two  countries, 
some  French  merchants  would  have 
themselves  fnllv  insured  at  home,  and 


SECT  il]  alien  enemy.  103 

The  same  arguments  might  be  used  in  favor  of  almost  every 
species  of  commercial  intercourse,  where  it  might  be  supposed  that 
the  subjects  of  the  government  permitting  it  would  profit  more 
than  those  of  tlie  enemy,  and  so  the  enemy  be  comparatively 
weakened.  Against  the  expediency  of  insuring  enemies'  property, 
it  was  urged  that  it  gave  to  one  class  of  citizens  an  interest  on  the 
side  of  the  enemy.  The  British  parliament  has,  by  two  several 
statutes,  prohibited  such  insurances  during  the  respective  wars 
pending  at  the  time.^ 

149.  But  the  courts  have  decided  that  these  insurances  were 
illegal,  independently  of  those  statutes,^  and  it  is  well  settled,  that 
an  underiuriter  cannot,  under  the  laivs  of  his  own  country,  hind 
himself  to  indemnify  an  alien  for  a  hostile  capture  by  a  ship  act- 
ing under  a  cominission  from  his  own  government,  though  at  the 
date  of  the  contract  the  alien  may  have  been  a  friend  ;  ^  and  that 
he  cannot  bind  himself  to  indenmify  a  person  who  is  at  the  time 
an  alien  enemy  against  any  loss,  or  contract  with  him  for  insur- 
ance, or  for  any  other  purpose.  And  it  is  indifferent  whose  name 
appears  in  the  policy,  for  if  the  interest  proposed  to  be  protected 
is  that  of  an  enemy,  the  contract  is  void.'* 

150.  Nor  is  the  underwriter  liable  in  such  case,  after  the 
restoration  of  peace,  to  an  action  by  the  assured,  who  has  thus 
become  an  alien  friend,  or  a  fellow-subject,  for  a  loss  on  such  a 
policy,  that  took  place  during  hostilities.^ 

to  three  or  four  times  the  amount  of  see  2  Val.  32,  h.  t.  a.  2;  1  Emer.  128, 

their  interest  in  England,  and  then  c.  4,  s.  9. 

send  their  vessels  out  to  be  captur-        3  Turtado  u.  Rodgers,  3  B.  &P.  191; 

ed.  Kellner  v.  Le  Mesurier,  4  East,  396  ; 

1  21  Geo.  II.  c.  2  ;  33  Geo.  III.  c.  27,  Gamba  v.  Le  Mesurier,  4  East,  407. 
s.  4.  4  Brandon  v.  Nesbitt,  6  T.  R.  23. 

2  Furtado  v.  Rodgers,  3  B.  &  P.  191 ;  5  Brandon  v.  Curling,  4  East,  410. 
•where  Lord  Alvanley  gives  the  opi-  A  previous  agreement  for  copartner- 
nion  of  the  court  very  elaborately,  ship  between  persons  belonging  to 
•which  has  been  confirmed  in  Kellner  the  opposite  belligerent  countries,  is  so 
V.  Le  Mesurier,  4  East,  396  ;  Gamba  v.  suspended,  at  least,  if  not  extinguished. 
Le  Mesurier,  4  East,  407 ;  Brandon  v.  Griswold  v.  Waddington,  15  Johns.  57, 
Curling,  4  East,  410  ;  McConnell  v.  16  id.  438,  cited  by  Mr.  Duer,  Vol.  L 
Hector,  3  B.  &  P.  113  ;  De  Luneville  p.  477  ;  The  Boedes  Lust,  5  Chr.  Rob. 
V.  Phillips,  5  Bos.  &  P.   97.     And  233. 


104  WHO   MAY   BE   INSURED.  [CHAP.  II. 

151.  But  if  an  alien  enemy  has  any  privilege  of  trading  or 
holding  property,  he  will  have  the  usual  incidents  to  such  privi- 
lege, and,  among  others,  the  right  of  protecting  his  property  by 
insurance. 

It  has  been  held,  that  an  alien  enemy,  residing,  under  a  safe- 
conduct,  in  a  country  at  war  with  his  own,  may  bring  an  action  in 
the  courts  of  that  country  ;  ^  and  it  seems  to  be  a  consequence  of 
this  rule,  that  he  may  make  valid  contracts.  If  he  have  the  privi- 
lege of  holding  lands  he  may,  during  war,  maintain  an  action  for 
the  possession,  or  other  rights  growing  out  of  his  title,^  from  which 
it  may  be  inferred,  that,  if  he  has  the  privilege  of  hiring  a  house, 
he  may  have  it  insured.  If  he  has  a  license  to  carry  on  a  parti- 
cular trade,  he  ceases  to  have  a  hostile  character  as  respects  such 
trade,  and  it  may  be  insured  ;  ^  and  the  other  rights  incident  to 
the  trade,  such  as  that  of  stoppage  in  transitu,  will  be  enjoyed  by 
the  party  licensed.^  License  being  granted  to  three  persons  to 
trade  with  an  enemy  of  Great  Britain,  a  policy  in  the  name  of  a 
broker,  was  made  on  the  adventure,  and  before  the  action  was 
brought  on  the  policy,  two  of  the  three  became  themselves  alien 
enemies.  It  was  held  that,  notwithstanding  this  circumstance,  the 
broker  might  recover  on  the  policy.^  But  a  license  "to  A  and  B 
on  behalf  of  themselves  and  other  British  neutral  merchants,"  for 
a  particular  voyage,  will  not  legalize  the  interest  of  one  who  is  an 
alien  enemy. ^ 

152.  A  neutral  may  be  insured  in  one  belligerent  country 
against  capture  by  the  other." 


1  Wells  v.  Williams,!  Salk.45;  S.  C,  upon  it  for  his  benefit.     But  in  Uspa- 

1  Ld.  llaym.  282.  richa  v.  Noble,  13  East,  332,  the  same 

9  Society,  &c.,  v.  Wheeler,  2  Gal.  judge  says,  the  license  may  exempt 

105.  any  person,  as  well  as  any  branch  of 

3  Ilagcdom  v.  Reid,  1  M.  &  S.  5G7,  commerce,  from  the  disabilities  and 

&c.     In  Kensington  v.  Inglis,  8  East,  forfeitures  arising   out  of  a  state  of 

273,    Lord    I'^Uonborough    says,   the  war. 

license  cannot  remove  the  personal  4  Fcnton  v.  Pearson,  15  East,  419. 

disability  of  the  trader  to  bring  a  suit  5  Do  Tastet  v.  Taylor,  4  Taunt.  233. 

in  his  own  name,  yet  it  purges  the  6  Griggr.  Scott,  4,Camp.  339  ;  Holt, 

trust,  so  that  his  agent,  in  wliose  name  129.     Per  Gibbs,  C.  J. 

the  policy  is  made,  may  bring  a  suit  7  U(>ii  j,.  Keid,  1  M.  &  S.  726. 


SECT.  III.]  NATIONAL   CHAIIACTER — DOMICILE.  105 


SECTION    III.       NATIONAL    CHARACTER. DOMICILE. 

153.  In  regard  to  the  circumstances  which  constitute  national 
character,  "it  is  clear  by  the  law  of  nations,  that  the  natiojial 
character  of  a  person,  for  commercial  purposes,  depends  upon  his 
domicile." ^  "No  position  is  more  established  than  this,  that  if  a 
person  goes  into  another  country  and  engages  in  trade,  and  resides 
there,  he  is,  by  the  law  of  nations,  to  be  considered  as  a  merchant 
of  that  country."  2 

"What  is  a  residence,  or  domicile,  is  in  itself  a  question  of  con- 
siderable difficulty,  depending  on  a  great  variety  of  circumstances, 
that  cannot  be  enumerated  with  precision.  The  active  spirit  of 
commercial  enterprise  increases  this  difficulty,  by  increasing  the 
variety  of  local  situations  in  which  the  same  individual  is  to  be 
found  at  no  great  distance  of  time."  ^ 

154.  The  circumstances  which  determine  the  domicile  of  a 
person  are,  in  general,  the  purpose  for  which  he  goes  to  a  coun- 
try, the  time  he  has  remained  or  proposes  to  remain  there,  the 
extent  of  his  business  in  comparison  with  its  extent  in  other 
places,  and  his  forming  there  domestic  ties  and  an  establishment, 
or  retaining  them  in  the  place  of  his  former  residence. 

155.  In  determining  national  character,  the  purpose  for  tvhich 
a  person  takes  up  his  residence  in  a  country  is  of  weight,  but  not 
always  conclusive. 

If  he  intends  to  reside  there  an  indefinite  time,  and  has  no  ulte- 
rior residence  in  view,  he  at  once  assumes  the  commercial  charac- 
ter of  his  domicile.'* 

So  where  he  establishes  himself  for  an  object  that  may  detain 
him  for  an  indefinite  period.^ 

156.  If  one  comes  to  a  country  with  a  special  object,  likely  to 

1  7  Cranch,  542 ;  McConnell  i'.  Hec-  subject  of  domicile  is  elaborately  treat- 
tor,  3  B.  &  P.  113  ;  The  Matchless,  1  ed  of  in  2  Wheat.  R.  Appendix. 
Hajrg.  203.  3  The  Harmony,  2  Chr.  Rob.  322. 

2  The  Indian  Chief,  3  Chr.  Rob.  12  ;  4  The  Venus,  8  Cranch,  253. 
Willison  r.  Patteson,  7  Taunt.  438;  5  The  Harmony,  2  Rob.  322. 
O'Mealy  v.  Wilson,  1  Camp.  482.  The 


106  WHO  MAY  BE  INSURED.  [CHAP.  11. 

detain  him  only  for  a  short  time,  his  residence  does  not  immedi- 
ately invest  him  with  the  commercial  character  of  the  place} 

A  Scotchman  came  to  reside  indefinitely  in  the  United  States 
in  1795,  and  was  naturalized,  and  in  1807  joined  a  commercial 
house  in  New  York,  and  went  to  Jamaica  in  1808  to  attend  to 
the  business  of  his  firm  there  temporarily,  and  remained  for  that 
purpose  nearly  a  year,  and  in  1811  went  thither  again  for  a  like 
purpose,  where  he  was  surprised  by  the  war  of  1812.  He  was 
held  to  retain  the  commercial  character  of  his  domicile  in  New 
York.2 

157.  Though  one  may  have  come  to  a  country  originally  for 
a  special  temporary  purpose,  yet  if  the  time  for  accomplishing  it 
becomes  protracted  and  indefinite,  he  is  considered  to  be  domiciled 
there  A 

Sir  William  Scott  says  he  must  take  "the  compound  ratio  of 
time  and  occupation  with  a  great  preponderance  on  time.""* 

A  foreigner  who  came  to  New  York  for  his  health,  and  remained 
there  and  engaged  in  trade,  was  held  to  have  acquired  a  domicile 
there.^ 

158.  Lord  Ellenborough  says,  that  if  a  man  be  entrapped, 
and  detained  in  a  foreign  country,  this  will  not  confer  upon  him 
its  national  character ;  ^  and  Lord  Loughborough,'^  that,  though 
"the  actual  place  where  a  man  is,  is  prima  facie,  to  a  great  many 
purposes,  his  domicile,  yet  you  encounter  that,  if  you  show  that  it 
is  either  constrained,  or,  from  the  necessity  of  his  affairs,  transitory  ; 
that  he  is  a  sojourner."  iiy  "  necessity  of  his  affairs  "  cannot  be 
intended  that  of  remaining  in  order  to  make  profits  by  entering 
into  commercial  enterprises,  but  that  of  a  temporary  stay  in  order 
to  retrieve  his  property. 

^  Ibid.  beginning  of  a  war,  he  says,  "  it  ccr- 

2  The  Ann  Green,  1  Gal.  274.  tainly  is  reasonable  not  to  bind  him 

3  The  Harmony,  2  Kob.  322.     Sir  too  soon  to  an  acquired  character." 
William  Scott  gives,  as  an  illustration,        4  S.  C,  2  Rob.  322. 

the  case  of  a  person  going  to  a  coun-  ^  Elbers  v.  Union  Ins.  Co.,  16  Johns. 

try  to  follow  a  lawsuit,  the  duration  of  128. 

•which  is  protracleil  and  becomes  inde-  ^  Bromley  v.  Ilesseltine,  1  Camp.  75. 

finite.     In  case  of  a  jjcisom  cf)ming  to  "*  IJcuiiulc,  v.  .Tolinstone,  3  Ves.  11)8. 

a  belligerent  country  at  or  licforc  the  See  also  the  Ann  Green,  supra. 


SECT.  III.]  NATIONAL   CHARACTER.  —  DOMICILE.  107 

159.  Where  a  person  resident  in  a  foreign  country  for  a  spe- 
cial temporary  purpose,  is  surprised  there  by  a  war  hreaJcing  out 
between  his  own  country  and  that  of  his  temporary  residence,  and 
he  loses  no  time,  on  the  earliest  notice  that  war  is  declared  or 
impending,  to  put  himself  on  his  ivay  home,  the  mere  fact  of  his 
being  in  the  enemy  country  on  the  war  breaking  out  will  not  fix 
upon  him  the  alien  national  character.^ 

This  discriminating  point  of  the  proposition  just  stated  is,  that 
in  such  case  the  residence  after  the  commencement  of  hostihties  is 
involuntary,  or  one  which  the  party  reluctantly  prolongs.  We 
exclude  all  question  as  to  the  national  character  of  any  particular 
parcel  of  his  property  on  account  of  its  origin,  use,  destination,  or 
other  circumstance  than  his  ownership.  The  position  is,  that, 
under  the  circumstances  stated,  his  ownership  merely,  and  inde- 
pendently of  other  considerations,  as  far  as  that  is  the  criterion, 
invests  his  property  with  the  national  character  of  his  country,  to 
which  he  has  at  the  time,  and  previously  had  the  animus  rever- 
tendi.  This  doctrine  I  take  to  be  reasonable  in  itself  and  recos:- 
nized  in  the  whole  course  of  jurisprudence  on  the  subject.  It  was 
much  discussed  in  a  case  before  the  Supreme  Court  of  the  United 
States. 

Some  American  merchants  residing  in  England,  before  hearing" 
of  the  declaration  of  war  by  the  United  States  against  Great  Bri- 
tain in  1812,  and  while  they  had  no  particular  expectation  of  it, 
shipped  cargoes  thence  to  the  United  States,  which  were  captured 
by  American  cruisers.  Some  of  these  merchants  were  native  Bri- 
tish subjects,  who  had  formerly  emigrated  to  the  United  States, 
and  become  naturalized  citizens.  "It  was  contended  by  the 
captors,  that,  as  these  claimants  had  gained  a  domicile  in  Great 
Britain,  and  continued  to  enjoy  it  up  to  the  time  when  war  was 
declared,  and  when  these  captures  were  made,  they  must  be  con- 
sidered as  British  subjects  in  reference  to  this  property,  and,  con- 
sequently, that  it  might  be  legally  seized  as  prize  of  war,  in  like 
manner  as  if  it  had  belbnged  to  real  British  subjects.     But  if  not 


1  Bromley  v.  Hesseltine,  1  Camp.  75;  Bempde  r.  Johnstone,  3  Ves.  198; 
The  President,  5  Cbr.  Rob.  277. 


108  WHO  MAY  BE  INSURED.  [CHAP.  II. 

SO,  it  was  then  insisted,  that  these  claimants,  having,  after  tlieir 
naturalization  in  the  United  States,  returned  to  Great  Britain,  the 
country  of  their  birth,  and  there  resettled  themselves,  they  became 
redintegrated  British  subjects,  and  ought  to  be  considered  in  the 
same  light  as  if  they  had  never  emigrated." 

"On  the  other  side,  it  was  argued  that  American  citizens,  set- 
tled in  the  country  of  the  enemy,  were  entitled  to  a  reasonable 
time  to  elect,  after  they  knew  of  the  war,  to  remain  there,  or  to 
return  to  the  United  Slates,  and  that,  until  such  election  was  bona 
fide  made,  the  courts  of  this  country  were  bound  to  consider  them 
as  American  citizens,  and  their  projDerty,  shipped  before  they  had 
an  opportunity  to  make  this  election,  as  being  protected  against 
American  capture."  ^ 

A  majority  of  the  judges  were  of  opinion,  "that  the  doctrine, 
that  a  native,  or  naturalized  subject  of  one  country,  who  is  sur- 
prised in  the  country  where  he  was  domiciled,  by  a  declaration  of 
war,  ought  to  have  time  to  make  his  election  to  continue  there  or 
to  remove  to  the  country  to  which  he  owes  a  permanent  allegiance  ; 
and  that,  until  such  an  election  is  made,  his  property  ought  to  be 
protected  from  capture  by  the  cruisers  of  the  latter,  —  is  as  un- 
founded in  reason  and  justice  as  it  clearly  is  in  law.  The  charac- 
ter of  the  property  during  war  cannot  be  changed,  in  transitu,  by 
any  act  of  the  party." 

Marshall,  C.  J.,  dissented.  He  said,  "  I  think  I  cannot  be  mis- 
taken when  I  say,  that,  in  all  views  taken  of  this  subject  by  the 
most  approved  writers  on  the  law  of  nations,  the  citizen  of  one 
country  residing  in  another  is  not  considered  as  incorporated  in 
that  other,  but  is  still  considered  as  belonging  to  that  society  of 
which  he  was  originally  a  member.  And  if  war  break  out  between 
the  two  nations,  he  is  to  be  permitted,  and  is  expected,  to  return 
to  his  own.  But  if,  while  prosecuting  his  business  in  a  foreign 
country,  he  contemplates  a  return  to  his  own  ;  if,  in  the  prosecu- 
tion of  that  business,  he  is  promoting,  rather  than  counteracting, 
the  interests  and  policy  of  the  country  of  which  he  is  a  member, — 
it  would  seem  to  mc  to  be  pressing  the  principle  too  far,  and  to  be 

1  8  Crancb,  277,  The  Venus. 


SECT.  III.]  NATIONAL   CIIARACTEIl.  —  DOMICILE.  109 

drawing  conclusions  which  the  premises  will  not  warrant,  to  infer, 
conclusively,  an  intention  to  continue  in  a  country  which  has  be- 
come hostile,  from  a  residence  and  trading  in  that  country  while  it 
was  friendly." 

"  The  character  of  his  property  shipped  before  a  knowledge  of 
the  war  ought  not  to  be  decided  absolutely  by  his  residence  at  the 
time  of  the  shipment  or  capture,  but  ought  to  depend  on  his  con- 
tinuing to  reside  and  trade  in  the  enemy's  country,  or  on  his  taking 
prompt  measures  for  returning  to  his  own." 

He  thought  that  the  acts  of  the  party,  on  his  hearing  of  a  de- 
claration of  war,  are  proper  and  safe  evidence  of  what  were  his 
previous  intentions  ;  the  other  judges  thought  that  such  evidence 
could  not  safely  be  admitted. ^ 

It  is  to  be  observed  that  Chief  Justice  Marshall  does  not  rely 
upon  the  doctrine  so  strenuously  disclaimed  by  the  majority  of  the 
court,  namely,  that  a  resident  in  a  foreign  country  is  to  have  a 
reasonable  time  allowed  to  him  after  the  commencement  of  the 
war  to  elect  his  commercial  character  ;  he  merely  says,  that  it  is 
determined  by  the  motives  of  the  residence,  and  the  intention  of 
the  party,  before  and  at  the  time  of  the  breaking  out  of  the  war, 
gathered  from  his  acts  and  declarations  at  the  time,  and  pre- 
viously, and  directly  subsequent  to  that  event.  In  the  case  in  ques- 
tion, tlie  claimants  stood  upon  precisely  the  same  ground  as  if  the 
voyage  had  been  from  China,  instead  of  Great  Britain.  Looking 
at  the  case  in  this  light,  the  construction  put  upon  the  facts  by  the 
majority  of  the  court  seems  to  have  been  very  strict  upon  the 
claimants.  The  case  is  mainly  a  decision  on  a  rule  of  evidence, 
and  a  construction  of  circumstances  as  establishing  this  or  that 
hypothesis  relative  to  domicile.  The  better  ground  on  which  to 
support  the  decision  in  the  particular  case  seems  to  be  that  inci- 
dentally suggested  in  its  favor,  namely,  that  the  native  character 
easily  reverts,  and  so  determines  the  decision,  where  there  is  an 
equiponderance  of  evidence  between  two  domiciles. 

The  consequence  apprehended  by  the  other  judges  from  the 
adoption  of  Chief  Justice  Marshall's  opinion,  namely,  that  the 

1  The  Venus,  8  Crancli,  277. 
VOL.    I.  10 


110  WHO   MAY   BE   INSURED.  [CHAP.  II. 

private  property  of  some  subject  of  the  enemy  might  escape  con- 
demnation, does  not  seem  to  be  worthy  of  being  greatly  depre- 
cated, whereas  the  opposite  consequence  —  the  confiscation,  by  the 
government,  of  the  property  of  its  own  subjects  or  neutral  foreign- 
ers, without  any  fault  on  their  part  —  is  grievous  and  intolerable. 
It  seems,  therefore  to  be  a  case  in  which  the  leaning  of  the  court, 
if  it  may  be  supposed  that  any  case  admits  of  such  a  leaning,  is 
more  safe  if  in  favor  of  the  claimant. 

Mr.  Justice  Story  says,i  "that  the  interest  of  friends  may  some- 
times be  involved  in  our  vengeance  upon  enemies,  is  a  matter  im- 
possible to  avoid  ; "  which  is  a  reason  for  guarding,  as  much  as 
possible,  against  a  consequence  so  unjust  and  so  much  to  be  re- 
gretted. 

In  the  case  of  the  Bernon,^  Sir  William  Scott  says,  "The  pre- 
sumption arising  from  a  man's  residence  is,  that  he  is  there  animo 
manendi ;  it  lies  on  him  to  explain  it."  ^ 

160.  Where  the  residence  in  the  enemy  country  is  voluntarily 
continued  after  notice  of  the  ivar,  though  for  a  short  time,  for 
commercial  purposes,  such  residence  invests  the  resident  with  the 
national  commercial  character  of  the  place. 

161.  A  person  having  established  himself  abroad,  and  acquired 
a  foreign  domicile,  does  not  lose  his  acquired  national  commercial 


1  1  Gal.  617.  government;  his  property  was  restored 

2  1  Chr.  Rob.  102.  to  him ;  and  the  Citto,  3  Chr.  Hob.  38, 

3  See  also  the  case  of  the  Diana,  in  which  the  property  of  a  British  sub- 
5  Chr.  Rob.  CO ;  and  of  the  President,  ject,  who  resided  in  Holland  after  the 
5  Chr.  Rob.  277,  in  which  latter  it  is  declaration  of  war,  for  the  purpose, 
said,  an  intention,  accompanied  by  as  he  alleged,  of  collecting  his  debts, 
Bome  overt  act,  may  rebut  the  pre-  was  condemned  by  Sir  William  Scott, 
sumption  from  residence  ;  but  whether  Chief  Justice  Marshall,  however,  says 
the  act  must  precede,  or  may  be  sub-  of  Sir  William  Scott's  decisions,  "It 
sequent  to,  the  declaration  of  war,  is  is  impossible  to  consider  them  atten- 
not  said  ;  and  also  the  Ocean,  5  Chr,  tively,  without  perceiving  that  his  mind 
Rob.  90,  in  which  the  party,  an  Eng-  leans  strongly  in  flivor  of  the  captors." 
lishman,  on  the  appearance  of  hostili-  8  Cranch,  299.  See  also  the  case  of 
ties,  being  then  in  France,  had  taken  Curlissos,  cited  3  Chr.  Rob.  21 ;  and 
measures  to  return  to  England,  but  was  the  Frances,  8  Cranch,  335. 
detained   afterwards   l)y   tlie  French 


SECT.  III.]  NATIONAL   CHARACTER.  —  DOMICILE.  Ill 

character  by  visiting  his  native  country  for  a  merely  temporary 
purpose} 

162.  The  mere  intention  of  a  person  to  change  his  domicile 
for  his  native  one,  or  a  foreign  one,  has  not  that  effect  until  acts 
are  done  in  its  execution."^ 

163.  If  the  government  treats  the  inhabitants  of  a  third  coun- 
try, in  the  occupation  of  the  enemy,  as  neutral,  insurance  may  be 
made  in  their  behalf,  as  was  done  in  Great  Brltian,  in  regard  to 
the  inhabitants  of  Hamburg,  in  1810,  when  it  was  occupied  by 
the  French.^ 

164.  If  a  man  acts  as  a  merchant  in  two  countries,  he  must  be 
liable  to  be  considered  as  a  subject  of  each,  in  respect  to  the  trans- 
actions originating  respectively  in  those  countries.^ 

165.  A  resident  in  a  colony  or  a  commercial  factory  established 
in  a  foreign  country,  independent  of  any  control  and  authority  of 
the  local  government,  has  the  national  character  of  the  colony  or 
factory.^ 

166.  Where  a  merchant  removes  from  a  belligerent  country  to 
a  neutral  one,  pending  a  war,  and  carries  on  trade  in  the  latter, 
his  motives  will  be  strictly  scrutinized,  and  if  his  object  appears 
to  be  merely  to  mask  his  trade  for  the  time,  he  will  be  considered 
as  still  retaining  the  national  character  of  the  country  which  he 
left.' 

1  The  Friendschaft,  3  Wheat.  14  ;  Boedes  Lust,  5  id.  233 ;  Whitehill's 
Maryatt  v.  Wilson,  1  B.  &  P.  438  ;  8  case,  cited  5  id.  60.  Otherwise,  if  the 
T.  R.  31 ;  The  Ann  Green,  1  Gal.  274 ;  local  authority  has  jui-isdiction  and 
The  Jonge  Ruiter,  1  Act.  Ap.  IIG.  control.     See  The  San  Jose  Indiano,  2 

2  Tabbs  V.  Bendelack,  4  Esp.  108.  Gal.  268  ;  The  Friendschaft,  3  Wheat. 

3  Hagedorn  v.  Bell,  1  M.  &  S.  450.  14 ;  The  Danous,  4   Chr.   Rob.  255, 
See  also  Blackburne  v.  Thompson,  3  n. ;  The  Naiade,  4  Chr.  Rob.  251. 
Camp.  61 ;  15  East,  81.  6  gee    Duguet  v.   Rhlnelander,  1 

<  The  Jonge  Klassini,  5  Chr.  Rob.  Johns.  Cas.  360  (1801);  S.  C.  1  Gaines's 

302  ;  Somerville  v.  Somerville,  5  Ves.  Cas.  in  Error,  xxv. ;  and  2  Johns.  Cas. 

787  ;  The  Ann,  1  Dod.  221 ;  The  An-  476  ;  Jackson  v.  New  York  Ins.  Co., 

tonia  Johanna,  1  Wheat.  159 ;  Fibers  2  Johns.  Cas.  191 ;  The  Dos  Herma- 

r.  United  Ins.  Co.,  16  Johns.  128.  nos,  2  Wheat.   76;   The    Santissima 

5  The  Indian  Chief,  3  Chr.  Rob.  22  ;  Trinidad,  7  Wheat.  283  ;  1  Duer,  Mar. 

The  Rachel,  The  Etrusco,  and  the  Ins.  545. 
Twee   Vrienden,    id.    29,   31 ;    The 


112  WHO   MAY   BE  INSURED.  [CHAP.  II. 

There  is  a  dictum  of  Judge  Kelsall,  Vice-Admiralty  Judge  in 
the  Bahama  Islands,  that  an  emigrant  from  a  belligerent  country 
to  a  neutral,  flagrante  bello,  is  conclusively  presumed  to  retain  his 
belligerent  character.  The  same  doctrine  has  been  reproduced  in 
the  Supreme  Court  of  New  York  in  1801,  and  that  of  the  United 
States  in  1817,  as  if  it  were  a  familiar  one,  and  without  reference 
to  any  authority.  The  Court  of  Errors  of  New  York  reject  it ;  but 
also  without  any  citation  of  authority.  VatteP  says  all  citizens  of 
a  belligerent  country  bear  the  belligerent  character  wherever  they 
may  be.  But  he  intends  only  those  who  do  not  change  their  citi- 
zenship, which  he  maintains  ^  that  a  citizen  has  a  right  to  do  in 
certain  cases,  notwithstanding  the  wishes  or  decrees  of  his  govern- 
ment, and  in  others  by  permission  implied  by  practice,  or  expressly 
given.  This  doctrine  is  obviously  so  reasonable,  that  I  venture  to 
leave  it  as  involved  in  the  common  doctrines  on  the  subject  of 
commercial  national  character,  and  not  an  exception. 

167.  The  national  character  of  a  corporation  depends  upon 
that  of  its  members.^ 

It  has  been  held  in  the  Supreme  Court  of  the  United  States, 
and  that  of  New  York,  that  a  subject  of  a  belligerent  country,  who 
emigrated  to  a  neutral  country  during  war,  did  not  acquire  the 
national  character  of  the  neutral  country,  by  residence,  while  the 
war  continued.'*  But  the  Supreme  Court  of  Errors  in  New  York 
decided,  that  the  emigrant,  in  such  case,  if  he  emigrated  bona  fide, 
and  not  merely  to  mask  commercial  enterprises  under  a  neutral 
flag,  would  acquire  the  national  character  of  the  country  to  which 
he  emigrated,  in  the  same  manner  as  if  he  had  come  from  a  friendly 
country.^ 

168.  The  commercial  national  character  of  a  consul  is  not 
affected  by  his  office,  but  is  determined,  lilie  that  of  other  persons, 

1  B.  3,  c.  5.  4  Duguet  v.  Rhinelander,  1  Johns. 

2  B.  1,  c.  10.  Cas.  3G0;  Jackson  v.  New  York  Ins. 

3  Hope  Ins.  Co.  v.  Boartlman,  5  Co.,  2  Johns.  Cas.  191 ;  The  Dos  Iler- 
Cranch,57;  Bank  of  U.S.  t\  Dcvcaux,  nianos,  2  Wheat.  76. 

5  Cranch,  02;  .Society,  &c.,  v.  Wheeler,        ^i  Caincs's  Cas.  xxv. ;   2  Johns. 
2  Gal.  105.  Cas.  47G. 


SECT.  III.]  NATIONAL   CHARACTEIl.  —  DOMICILE. 


113 


by  residence,  and  the  various  other  circumstances  that  constitute 
national  character,  as  affecting  that  of  his  property.^ 

169.  Mariners  are  considered  to  be  of  the  nation  to  which  the 
ships  belong,  on  board  of  which  they  are  employed.'^ 

170.  The  native  Jiational  character  continues  until  another  is 
acquired.^ 

171.  The  native  character  easily  reverts,  and  it  requires  fewer 
circumstances  to  constitute  domicile  in  the  case  of  a  native  than 
to  impress  the  national  character  on  one  who  is  originally  of 
another  country.^ 

Accordingly,  if  the  party  puts  himself  in  itinere  to  return  to 
his  native  country,  and  is  in  pursuit  of  his  native  character,  he  is 
deemed  already  to  have  resumed  it ;  ^  provided  he  has  been  en- 
gaged in  a  trade  completely  lawful  in  his  native  character.^ 


1  The  Indian  Chief,  3  Chr.  Eob.  12  ; 
Arnold  v.  United  Ins.  Co.,  1  Johns. 
Cas.  363. 

2  The  Endraught,  1  Chr.  Rob.  19 ; 
The  Embdcn,  1  id.  16  ;  The  Frederick, 

5  id.  9 ;  The  Ann,  1  Dod.  221 ;  The 
Vriendschap,  4  Chr.  Rob.  166;  The 
Indian  Chief,  3  id.  12. 

3  Sparenburgh  v.  Bannatyne,  1  B. 

6  P.  163. 


4  La  Virginie,  5  Chr.  Rob.  98 ;  The 
Indiana,  3  id.  44  ;  The  St.  Lawrence, 
1  Gal.  467;  Sparenburgh  v.  Banna- 
tyne,  1  B.  &  P.  163. 

5  The  Frances  and  Cargo,  1  Gal. 
616;  The  Indian  Chief,  3  Chr.  Rob. 
12;  The  Ann  Green,  1  Gal.  274. 

6  The  St.  Lawrence,  1  Gal.  467; 
La  Virginie,  5  Chr.  Rob.  98. 


10* 


CHAPTER    III. 


INSURABLE    INTEREST. 


Sect.  1.  What  interest  is  sufficient. 

2.  The  legality  of  the  interest. 

3.  Interest  of  a  mortgager. 

4.  Interest  of  a  mortgagee. 

5.  Interest  of  a  tender  in  bottomry 

and  respondentia. 

6.  Interest  of  a  bon'ower  in  bottomry 

and  respondentia. 

7.  Interest  of  a  consignee,  factor, 

agent,  or  carrier. 


Sect.  8.  Interest  in  profits. 

9.  Interest    of    captors    and    prize 
agents. 

10.  Interest  of  the  charterer  of  a  ship. 

11.  Interest  in  freight. 

12.  Interest  in  fishing  voyages. 

13.  Interest  in  fire  insurance. 

14.  Interest  in  lives. 

15.  Interest  in  doiible  insurance. 

16.  Interest  in  reinsurance. 


SECTION    I.       WHAT    INTEREST    IS    SUFFICIENT. 

172.  It  is  essential  to  every  contract  of  insurance,  that  the 
assured  has  an  interest  at  risk.  If  he  has  no  interest,  or  if  his 
interest  is  not  at  risk,  he  can  be  liable  to  no  loss,  and  accordingly 
there  is  nothing  against  which  the  insurer  can  agree  to  indemnify 
him. 

173.  It  is  not  requisite,  however,  that  the  thing  to  which  the 
insurance  relates,  or  the  interest  of  the  assured,  should  he  a  species 
of  property  subject  to  possession  or  tradition,  or  that  the  interest 
should  he  that  of  ahsolute  oivnership,  or  that  the  suhject  should 
be  such  as  to  have  what  is  properly  called  a  value  or  'price,  or  be 
capable  of  being  assigned. 

One  may  insure  the  life  or  liberty  of  a  freeman,  although  a  free- 
man cannot  be  said  to  have  a  pecuniary  value,  nor  can  another 
have  any  directly  salable,  assignable  right  of  property  in  his  life  or 
liberty.  The  French  Ordinance  permitted  a  person  interested  in  the 
liberty  of  a  mariner  or  passenger  upon  a  voyage,  to  insure  him  against 
capture.^     And  it  permitted  the  relatives  of  a  person  ransomed 


1  h.  t.  a.  9. 


SECT.  I.]  WHAT  INTEREST  IS   SUFFICIENT.  115 

from  slavery  among  the  Barbary  corsairs,  and  also  the  person  who 
had  paid  his  ransom,  to  insure  his  safe  return  home.^  The  ordi- 
nance plainly  recognizes  an  insurable  interest  in  these  cases. 

A  person  being  insured  against  the  risk  of  being  drafted  to  serve 
in  the  militia,  no  doubt  was  suggested  that  one  liable  to  be  so 
drafted  had  an  insurable  interest  in  that  event.^ 

174.  But  insurance  is  a  contract  for  pecuniary  indemnity  ;  and, 
consequently,  though  neither  the  thing  concerning  which  the  con- 
tract is  made,  nor  the  interest  of  the  assured,  must  necessarily 
have  any  specific  worth,  that  can  be  computed  in  money,  or  ex- 
changed, yet  the  peril  or  event  insured  against  must  he  such,  that 
its  happening  might  bring  upon  the  insured  a  pecuniary  loss.  It 
is  sufficient  that  it  might  bring  a  loss,  and  by  no  means  necessary 
that  it  should  certainly  have  that  consequence,  were  it  to  happen. 
A  creditor  has  an  insurable  interest  in  the  life  of  his  debtor,  though 
it  is  not  certain  that  the  debtor  would  pay  him,  should  he  live, 
yet  there  is  some  probability,  more  or  less  remote,  that  he  would.^ 

Where  goods,  being  ordered,  were  consigned  to  the  agent  of  the 
consignor  to  be  delivered  to  the  party  ordering  them,  on  payment 
of  the  price,  and  were  lost  in  the  transit,  it  was  held  that  the  party 
ordering  them  could  not  recover  against  his  underwriters  for  their 
value, ^  on  the  ground  that  he  was  not  liable  for  the  price,  and  so 
had  sustained  no  loss. 

175.  In  order  to  constitute  an  insurable  interest  against  any 
peril,  or  render  a  subject  insurable  against  any  peril,  it  must  be 
such  an  interest  or  subject  that  the  peril  may  have  a  direct  effect 
upon  it,  instead  of  a  remote,  circuitous,  consequential  effect.^ 
That  is  to  say,  the  interest  must  be  a  direct  one,  in  reference  to 
the  perils  insured  against. 

1  a.  11,  1  Emer.  203,  c.  8,  s.  3.  See  The  Aurora,  4  Chr.  Rob.  218; 

■2  Duffell  -0.  Wilson,  1  Camp.  401 ;  The  Josephine,  4  Chr.  Rob.  25 ;  and 

Astley  V.  Ray,  2  Taunt.  214.  The  Atlas,  3  Chr.  Rob.  299. 

3  See  Mr.  Justice  Lawrence's  opi-  5  See  infra  as  to  the  interest  of  a 
nion  in  Lucena  v.  Craufurd,  5  B.  &  creditor  in  the  safety  of  his  debtor's 
P.  301,  as  to  insurable  interest  gene-  property.  See  also  infra,  chapter  on 
rally.  risks,  section  on  remote  and  conse- 

4  Warder  v.  Ilorton,  4  Binn.  529.  quential  losses. 


116  INSURABLE   INTEREST.  [CIIAP.  III. 

176.  A  conditional  interest  is  a  sufficient  subject  for  insurance^ 
if  it  be  properly  described,  that  is,  such  an  interest  as  a  party 
actually  has,  but  which  is  subject  to  be  defeated  by  certain  events. 

An  interest  subject  to  the  contingency  of  survivorship  between 
two  or  more  persons,  is  a  common  subject  of  insurance  in  life  poli- 
cies. 

A  query  was  heretofore  suggested  in  Louisiana,  whether,  under 
a  donation  inter  vivos  according  to  the  civil  law,  the  donee  had  an 
insurable  interest  in  the  thing  so  given. ^ 

This  must  evidently  depend  upon  the  sort  of  condition  to  which 
the  donation  is  subject,  either  by  law  or  by  its  terms.  If  the  con- 
dition be  such  that  the  gift  is  valid,  and  binding  on  the  donor,  un- 
less it  shall  be  forfeited  by  the  ingratitude  of  the  donee,  during  the 
life  of  the  donor,  then  the  donee  has  an  interest  in  the  thing  given, 
so  long  as  ingratitude  cannot  be  imputed  to  him.  Against  his  loss 
by  such  imputation  he  has  no  insurable  interest,  as  it  depends  on 
himself;  but  so  long  as  he  does  not  incur  a  forfeiture  by  being 
subject  to  such  imputation,  he  has  an  insurable  interest  in  respect 
to  other  risks,  as  those  of  the  elements,  but  on  such  forfeiture  the 
insurable  interest  in  respect  to  other  risks  ceases. 

177.  An  assured  having  possession  of  a  vessel,  claiming  the 
same  under  a  imrchasc  at  a  public  sale  by  a  public  officer  in  pur- 
suance of  legal  proceedings,  has  an  adequate  insurable  interest, 
the  sufficiency  of  which  is  not  subject  to  be  disputed  by  his  insur- 
ers after  a  loss,  on  the  ground  of  the  invalidity  of  the  proceedings 
whereby  he  acquired  his  title.^ 

178.  A  purchaser,  who  is  liable /br  the  price  of  goods,  has  an 
insurable  interest  in  them,  though  the  vendor  has  a  lien  upon 
them  for  the  exercise  of  his  right  of  stopping  them  in  transitu? 

179.  Policies  are  frequently  made  in  reference  to  a  future 
interest.  "  It  is  every  day's  practice  to  insure  goods  before  they 
are  bought;"'*  yet,  if  one  insures  them  on  his  own  account,  the 

^  Sec  Dcnisart,  Collection  dc  Deci-        3  gee  Clay  v.  Harrison,  and  other 
sions,  tome.  12;  Code  Napoleon,  No.    cases,  infra,  n. 
953  -  955.  4  llhind  v.  Wilkinson,  2  Taunt.  237. 

2  Frierson  v.  Brcnha,  5  La.  Ann.  11. 
540. 


SECT.  I.]  "WHAT   INTEREST   IS   SUFFICIENT.  117 

property  must  pass  to  him  before  a  loss  happens,  otherwise  he 
can  recover  nothing  under  the  policy. 

Where,  before  goods  are  shipped,  a  bill  of  lading  is  made  out 
and  signed,  and  transmitted  to  the  consignee,  and  he  makes 
advances  thereon,  his  interest  attaches  as  soon  as  the  goods  are 
subsequently  laden  on  board.^  A  policy  would  accordingly  then 
attach  also. 

Mr.  Ellis-  cites  Lord  Chancellor  King^  in  support  of  the  pro- 
position, that  a  fire  policy  can  be  made  only  upon  an  interest  sub- 
sisting at  the  time.  Parties  do  not  make  either  fire  or  life  policies 
in  anticipation  of  their  interest,  for  the  obvious  reason,  that,  as  the 
premiums  are  usually  payable  in  advance  for  certain  periods,  the 
proportion  for  the  time  prior  to  the  interest  being  acquired  would 
be  thrown  away.  The  same  would  be  true  on  a  marine  policy  on 
time.  But  there  does  not  appear  to  be  any  reason  why  a  fire 
policy  or  life  policy  cannot  be  made  in  anticipation  of  an  interest, 
as  well  as  a  marine  policy,  where  there  is  no  concealment,  or 
fraud,  or  prejudice  to  the  underwriter.  The  policy  could  not,  of 
course,  take  effect  until  an  interest  should  accrue. 

180.  A  valid  executory  contract  for  a  thing,  gives  an  insura- 
ble interest  in  it  to  the  party  holding  the  contract,  the  amount  of 
which  will  be  that  of  his  loss  if  it  is  destroyed,  or  of  his  gain  if  the 
contract  is  fulfilled.  The  interest  accruing  on  a  contract  will  be 
fully  illustrated  in  considering  the  insurable  interest  in  freight. 

So,  where  the  assured  had  agreed  for  the  purchase  of  oats  to  be 
shipped  for  him  to  P.,  and  notice  was  given  him,  that  they  were 
shipped,  not  specifying  to  what  port,  and  they  were  shipped  for  S. 
instead  of  P.,  and  he  insured  them  for  S.  and  P.,  it  was  held  that 
the  underwriters  could  not  object  his  want  of  interest,  because  the 
oats  had  not  been  shipped  to  the  place  designated,  for  he  had  a 
right  to  accept  them,  and  waive  any  objection  on  that  account."* 

So  a  contract  for  the  purchase  of  a  vessel,  and  part  payment, 
the  legal  title  and  control  and  ri^ht  to  sell  the  vessel  still  remain- 


i  Rowley  v.  Bigelow,  12  Pick.  307.        ■*  Sparkes  v.  Marshall,  2  Bing.  N.  C. 

2  Insurance,  p.  21,  ed.  1832.  761. 

3  Lynch  V.  Dalzell,  4  Bro.  P.  C.  431. 


118  INSUEABLE  INTEREST.  [CHAP.  III. 

ing  with  the  vendor  as  security  for  the  payment  of  the  rest  of  the 
purchase-money,  gives  the  purchaser  an  insurable  interest  in  the 
vessel  to  the  amount  of  her  full  value,  where  he  is  absolutely  liable 
to  pay  the  remainder  of  the  purchase-money.^ 

A  decision  precisely  similar  in  doctrine  was  made  by  the  Supreme 
Court  of  the  United  States.  One  of  the  two  tenants  in  common 
of  a  mill,  by  both  of  whom  it  was  insured,  had  agreed  to  purchase 
the  other's  half  on  condition  of  paying  a  certain  amount  of  out- 
standing debts,  which  he  had  not  paid,  and  was  unable  to  pay, 
when  it  was  burnt  down.  The  decision  was  in  favor  of  the  assureds 
for  the  whole  amount  insured,  on  the  ground  that  the  underwriters 
could  not  object  to  the  want  of  insurable  interest  by  reason  of  non- 
compliance with  the  condition,  since  the  other  cotenant,  and  his 
co-assured,  of  whom  he  had  purchased,  to  whom  alone  it  belonged 
to  enforce  the  condition,  had  not  elected  to  annul  the  agreement 
for  the  sale  on  account  of  such  non-compliance.^ 

So,  in  pursuance  of  the  same  doctrine,  it  was  held  in  New  York, 
that  where  the  assured  had  agreed  to  purchase  a  building,  and 
made  a  payment  of  interest  on  the  agreed  purchase-money,  and 
had  made  improvements  on  the  building,  he  had  insurable  interest 
in  it  to  its  full  value.^ 

181.  The  expected  profit  on  a  maritime  adventure  is  an  ordi- 
nary subject  of  insurance. 

So  the  profit  of  an  inn,^  or  a  theatre,^  is  a  sufficient  insurable 
interest.^ 

182.  The  share  of  a  seaman  in  the  prospective  catchings  of  a 

1  Rider  v.  Ocean  Ins.  Co.,  20  Pick,  ing  the  case  equivalent  to  that  of  a 
259.  mortgage,  where  mortgager  and  mort- 

2  Columbian  Ins.  Co.  v.  Lawrence,  gagcc  both  have  an  insurable  interest; 
1  Peters,  S.  Ct.  R.  25.  and  if  so,  the  facts  of  part  payment 

3  McGinney  v.  Phoenix  Ins.  Co.,  1  and  of  improvements  were  not  requi- 
Wend.  85.  I  infer  from  the  report,  site  in  order  to  give  an  insurable  inte- 
that  the  assured  was  liable  for  the  rest,  though  the  latter  would  augment 
whole  purchase-money  notwithstand-  the  amount  of  the  interest. 

ing  the  title  had  not  been  conveyed  4  Wright  i'.  Pole,  1  Ad.  &  El.  621. 

to  him,  and  the  building  had  been  5  Niblo  v.  North  American  Ins.  Co., 

destroyed  ;  and  that  the  title  was  re-  1  Sandf.  551. 

taincd  by  the  vendor,  as  security,  mak-  G  Sec  infra,  s.  8. 


SECT.  I.]  WHAT   INTEREST  IS   SUFFICIENT.  119 

fishing  voyage  gives  him  an  interest  sufficient  for  insurance,  after 
he  has  shipped  and  embarked  on  the  voyage,  on  which  his  assignee 
may  make  insurance  for  his  own  benefit,  whether  the  seaman  him- 
self could  do  so  or  not.  That  is  to  say,  the  seaman  may  insure 
his  share  in  the  catcbings  after  they  are  on  board,  but  it  is  matter 
of  query  whether  he  can  insure  beyond  the  amount  realized,  since 
his  share  of  the  prospective  catchings  are  in  the  nature  of  wages 
to  be  earned.  Accordingly,  where  the  ship-owner  or  other  party 
had  shipped  a  quantity  of  clothing  on  board  of  a  sealing  vessel,  to 
be  supplied  to  the  men  on  the  credit  of  tiieir  pledged  shares  of  the 
catchings,  and  insured  his  shipment  and  its  "proceeds,"  meaning, 
by  this  term,  the  shares  of  the  men,  it  was  held  by  Mr.  Justice 
Story,  that  he  thereby  had  an  insurable  interest  to  the  full  amount 
at  which  the  subject  was  valued  in  the  policy,  though  the  amount 
of  goods  remaining  and  the  shares  of  the  men  in  the  fruits  of  the 
voyage  that  were  on  board  at  the  time  of  the  loss,  might  be  less, 
or  might  even  be  nothing,  the  clothes  having  been  distributed  and 
no  seal-skins  taken.  Judge  Story  remarked,  that  the  interest  did 
not  necessarily  cease  because,  at  the  moment,  there  might  not  be 
any  tangible,  corporeal  subject. ^ 

183.  A  mere  contingent  expectation  of  a  thing,  not  founded 
upon  any  legal  right  or  title  to  it,  or  property  in  it,  or  upon  any 
contract  for  it,  or  any  possession  of  it,  liable  to  be  defeated  only 
by  some  contingency,  does  not  give  an  insurable  interest  in  the 
thing,  which  will  be  covered  by  an  insurance  upon  it. 

An  expectation  may,  in  many  cases,  be  insured,  against  certain 
risks,  by  a  policy  particularly  specifying  its  nature. 

A  mere  verbal  promise  which  is  not  legally  binding  does  not 
give  an  insurable  interest  in  the  thing  promised.^ 

Nor  does  a  contract  which  has  been  forfeited  by  non-compliance 
with  its  conditions  give  such  an  interest  in  the  thing  contracted 
for.3 


1  Hancox  v.  Fishing  Ins.   Co.,  3        3  Brown  v.  Williams,  28  Maine  K. 
Sumner,  132.  252. 

2  Stockdale  v.  Dunlop,  6  Mees.  & 
W.  224. 


120  INSURABLE  INTEREST.  [CHAP.  III. 

An  expectation  of  a  fishing  bounty  from  government,  encou- 
raged merely  by  some  instances  of  the  bounty  being  given,  but  not 
founded  on  any  promise  of  the  government,  does  not  give  such  an 
interest.^ 

184.  Retrospective  insurance  is  matter  of  common  practice, 
when  neither  of  the  parties  is  supposed  to  know  whether  a  loss 
has  happened,  and  is  provided  for  in  the  printed  form  of  marine 
insurance  by  the  clause,  "lost  or  not  lost;"  so  that  the  policy 
may  be  thus  applied  to  a  subject  which  has  ceased  to  exist  at  the 
time  of  making  it. 

185.  It  is  plain  that  there  must  be  a  subsisting  interest  at  the 
time  of  the  loss,  in  order  to  give  any  claim  against  underwriters 
for  indemnity.^ 

186.  A  party  having  agreed  to  assume  certain  risks,  or  stand 
insurer  on  a  subject,  has  an  insurable  interest  in  it  against  the 
risks  for  which  he  is  himself  liable.^  The  interest  in  such  case 
is  identical  with  that  for  reinsurance. 

187.  A  change  of  an  absolute  ownership,  to  an  interest  as 
mortgagee,  or  other  interest  not  required  to  be  specifically  de- 
scribed in  the  policy,  does  not  defeat  a  policy  on  the  subject, 
which  does  not  specify  the  kind  of  interest  that  is  insured.^ 

188.  So,  ivhcre  the  owner  has  sold  the  subject,  agreeing  still 
to  stand  insurer  in  respect  to  certain  risks,  for  a  certain  period, 
under  his  then  subsisting  policy,  this  constitutes  a  sufficient  still 
subsisting  interest  under  such  policy. 

Thus,  where  a  member  of  a  mutual  marine  insurance  association, 
formed  for  the  purpose  of  insuring  ships,  sold  his  ship  on  which  he 
was  insured  by  the  association,  but  agreed  with  the  purchaser,  that. 


1  Deveaux  v.  Steele,  C  Bing.  N.  C.  3  Kecd  v.  Cole,  3  Burr.  1512. 
358.  ^  Stetson  v.  Mass.  Mut.  Fire  Ins.  Co., 

2  Carroll  v.  Boston  Mar.  Ins.  Co.,  8  4  Mass.  R.  330 ;  Reed  v.  Cole,  3  Burr. 
Mass.  It.  515  ;  Copeland  v.  Mercantile  1512.  See  Bell  v.  Firemen's  Ins.  Co., 
Ins.  Co.,  G  rick.  198;  Murdock  v.  3  Bob.  La.  R.  428,  contra,  but  the 
Chenango  County  Ins.  Co.,  2  Comst.  doctrine  in  tlie  text  is  asserted  S.  C, 
210  ;  Barr  v.  Gibson,  5  Mees.  &  W.  5  id.  423. 

390;   Howard  v.  Albany  Ins.  Co.,  3 
Dcnio,  301. 


SECT.  I.]  WHAT   INTEREST  IS   SUFFICIENT.  121 

in  case  of  her  being  lost  on  a  certain  voyage  or  within  a  certain 
time,  specifying  the  risk  for  which  she  had  been  insured,  he  would 
pay  the  purchaser  five  hundred  pounds,  the  vendor  still  had  an 
insurable  interest  in  the  ship  to  that  amount  in  respect  to  such 
risk  under  the  policy .^ 

189.  Where  the  assured  has  agreed  to  sell  the  subject,  deliver- 
able  on  payment  of  the  price,  or  puts  it  into  the  vendee's  hands, 
the  property  to  pass  on  payment,  he  still  retains  an  insurable  inte- 
rest to  its  full  value. ^ 

190.  Though  the  interest  of  the  assured  is  subject  to  be  defeated 
by  the  fraudulent  act  of  another,  still  it  is  a  sufficient  subject  for 
insurance,  and  he  will  recover  for  a  loss,  unless  he  has  been  divested 
of  his  interest  before  the  loss  takes  place. 

As  where  the  interest  is  a  mortgage,  or  other  lien,  which,  to  be 
valid  against  a  subsequent  purchaser  without  notice,  requires  to  be 
recorded  or  other  publicity  to  be  given  to  it.^ 

191.  A  bailee,  or  depositary,  being  liable  by  law  or  by  contract 
for  certain  risks  whereby  the  subjects  bailed  or  deposited  may  be 
damaged  or  lost,  has  an  insurable  interest  in  it  in  respect  to  such 
risks.     This  follows  from  the  preceding  propositions.'* 

192.  It  is  a  general  rule  that  a  trustee  or  agent  for  the  sale  of 
a  ship,  or  other  subject,  cannot  himself  become  the  purchaser,  with- 
out the  consent  or  ratification  of  his  principal  or  cestui  que  trust, 
and  his  assuming  to  be  absolute  owner  will  not  divest  the  principal 
or  cestui  que  trust  of  his  property  or  insurable  interest. 

Thus,  where  the  master  and  supercargo,  being  authorized  to 
make  sale  of  a  vessel,  agreed  between  themselves  that  one  of  them 
should  be  the  purchaser  and  absolute  owner,  this  agreement  was 
held  not  to  divest  the  owners  of  their  insurable  interest.^ 

So  if,  upon  some  disaster,  the  cargo  is  put  up  to  sale  and  bought 

1  Reed  v.  Cole,  3  Burr.  1512.  4  See  Crowly  v.  Cohen,  3  B.  &  Ad. 

2  Warder  V.  Horton,  4  Binn.  529  ;  478.  Implied  also  in  Armitager.  Win- 
Bell  V.  Fireman's  Ins.  Co.,  3  Rob.  La.    terbottom,  1  Mann.  &  Grang.  130. 

R.  428 ;  Providence  County  Bank  v.        ^  Copeland  v.  Mercantile  Ins.  Co., 
Benson,  24  Pick.  204.  6  Pick.  198. 

3  Bell  V.  Western  Mar.  &  Fire  Ins. 
Co.,  5  Rob.  La.  R.  423. 

VOL.    I.  11 


122  INSURABLE   INTEREST.  [CHAP.  III. 

by  the  master,  he  obtains  no  interest  by  such  purchase  except  by 
the  shipper's  consent,  and  the  property  will  still  belong  to  the 
shipper,  who  will  continue  to  retain  his  insurable  interest.^ 

193.  The  attachment  or  arrest  of  goods  or  other  subject  at  the 
suit  of  a  creditor  on  mesne  process,  or  a  seizure  on  execution  to 
satisfy  a  judgment,  does  not  deprive  the  owner  of  his  interest  or 
diminish  it,  until  a  legal  absolute  sale  is  made.^ 

194.  The  illegal  capture  of  a  subject,  and  the  purchase  of  it  by 
the  captor  at  a  sale  under  condemnation  in  a  foreign  court,  will 
not  divest  the  owner  of  his  property,  nor,  consequently,  of  his  insur- 
able interest.^ 

195.  Where  property  is  forfeited  to  the  government  by  some 
illegal  act,  but  still  remains  in  possession  of  the  owner  as  his,  and 
is  not  illegally  employed  or  exposed  to  illegal  risks  in  the  adven- 
ture upon  which  an  insurance  is  made,  the  owner  still  continues  to 
have  sufUcient  insurable  interest,  but  from  the  time  of  the  seizure 
for  the  forfeiture  his  insurable  interest  ceases,  in  case  the  proceed- 
ings are  thereupon  prosecuted  to  final  condemnation. 

In  some  cases  a  distinction  has  been  taken  between  a  violation 
of  law,  whereby  the  thing  alone  is  forfeited,  and  one  whereby  the 
thing  or  its  value  is  so ;  the  forfeiture  of  the  thing  being  considered 
as  divesting  the  owner  of  his  property  simultaneously  with  the  ille- 
gal act;^  but  in  case  of  the  forfeiture  of  its  value  merely,  the 
property  being  considered  not  to  be  devested  until  the  seizure  of 
the  thing  for  the  forfeiture.^ 

When  a  seizure  is  made  for  forfeiture  by  breach  of  law,  it  neces- 
sarily operates  retroactively,  and  overrides  all  mean  conveyances 
and  liens  ;''  but  the  established  doctrine  is,  that,  in  general,  with- 

1  Barker  v.  Marine  Ins.  Co.,  2  Ma-  7  Wheat.  471 ;  6  Wheat.  IG,  n.;  The 
son,  3C9.  Bello  Corrunes,  G  Wheat.  152. 

2  FrankHn  Ins.  Co.  v.  Findlay,  6  4  Fontaine  v.  Phceni.x:  Ins.  Co.,  10 
Whart.  483  ;  Bell  v.  Western  Mar.  &  Johns.  58. 

Fire  Ins.  Co.,  5  Rob.  La.  11.  423 ;  3  id.  ^  United  States  u. Grundy,  3  Cranch, 

428.  337. 

3  The  Arro;Tantc  Barcelones,  7  ^  Gelston  v.  Iloyt,  3  Wheat.  246. 
Wheat.  4 9G.  Sec  also  Santa  Maria,  See  also  United  States  v.  19G0  Bags 
7  Wheat.  490;  The  Santissiraa  Tri-  of  Coffee,  8  Cranch,  398;  The  Mars, 
nidad,  7  Wheat.  283  ;  The  Gran  Tara,  8  Cranch,  417. 


SECT.  I.]  WHAT  INTEREST   IS   SUFFICIENT.  123 

out  any  such  distinction  as  above  stated,  the  owner  is  not  divested 
of  his  property  by  an  act  of  forfeiture  until  seizure  therefor/  that 
is  to  say,  after  the  act  of  forfeiture  the  owner  holds  a  precarious 
title,  subject  to  be  devested,  and  coining  within  the  doctrine  above 
laid  down  as  to  conditional  interests.^ 

In  a  case  of  insurance,  where  the  underwriters  alleged  in  defence 
a  forfeiture  of  the  insured  vessel,  by  an  act  of  smuggling,  for  which 
no  seizure  had  been  made,  Mr.  Justice  Story  said  :  "  I  have  long 
been  accustomed  to  lay  up  as  an  elementary  axiom,  that,  in  all 
cases  of  forfeiture  of  personal  chattels,  the  property  of  the  owner 
is  not  devested  until  there  is  an  actual  seizure  thereof  by,  or  for 
the  use  of,  the  government."^ 

196.  Where  the  proyerty  in  a  thing  is  conditional,  and  subject 
to  a  contingency  whereby  it  may  be  defeated  and  extinguished,  the 
question  occurs,  whether  the  assured  can,  after  the  happening  of 
the  contingency,  and  being  divested  of  his  title,  recover  for  a  loss 
that  occurred  after  the  act  of  forfeiture. 

This  case  has  not,  to  my  knowledge,  occurred  in  jurisprudence. 
It  may  be  objected  to  the  assured's  recovering  the  loss  in  such 
case,  that  it  would  be  thus  far  screening  him  from  the  consequences 
of  a  contravention  of  the  law.  But  to  this  it  may  be  answered, 
that  denying  to  him  the  indemnity  for  an  intermediate  loss  would 
be  aggravating  or  positively  adding  to  the  penalty,  for  the  right  of 
the  government  to  the  forfeited  thing  attaches  to  it  only  in  the 
state  in  which  it  is  at  the  time  of  the  seizure,  without  regard  to  the 
diminution  of  its  value  after  the  act  of  forfeiture  by  wear  and  tear, 
decay,  the  action  of  the  elements,  or  the  negligence  and  mis- 
management of  the  owner.     As   between  the   assured  and  the 


1  Pipon  V.  Cope,  1  Camp.  434.    See  2  Supra,  sub.  sec.  No.  176. 

alsoWilliams  u.  Despard,  5  T.  R.  112;  3  Clark   v.   Protection  Ins.  Co.,  1 

•where  Thomas  v.  Withers  is  cited  by  Story's  R.  109 ;  and  see  Lockyer  v. 

Gould,  J.,  and  Hennel  v.  Perry  by  Offley,  1  T.  R.  252 ;  Polleys  v.  Ocean 

Lord  INIansficld,  to  the  same   point.  Ins.  Co.,  2  Shep.  141 ;  Ocean  Ins.  Co. 

See  also  United  States  i-.  The  Antho-  v.  Polleys,  13  Peters  S.  C.  R.  167; 

ny  Mangin,  3  Cranch,  356,  n. ;  S.  C,  and  Marlatlgui  v.  La.  State  Ins.  Co., 

7  Peters's  Adm.  R.  452,  per  Winches-  8  La.  R.  63. 
ter,  J.,  an  elaborate  case. 


124  INSURABLE   INTEREST.  [CHAP.  III. 

insured,  the  rights  of  the  government  prior  to  the  seizure  are  res 
inter  alios.  It  is  a  matter  of  mere  chance  whether  the  value  of  the 
thing  may  be  increased  or  diminished  subsequently  to  the  act  of 
forfeiture  and  before  the  seizure.  The  owner  may  have  replaced 
the  damage  by  repairs,  and  may  have  increased  its  value  by  im- 
provements and  additions.  The  denying  him  indemnity  on  account 
of  circumstances  occurring  after  the  loss  would  be  contrary  to  the 
general  principles  of  jurisprudence  in  this  respect  relative  to  insur- 
ance. It  would  be  equivalent  to  the  decision  of  Lord  EUenborough 
in  denying  indemnity  for  sea-damage,  which  was  insured  against, 
because  a  total  loss  subsequently  happened  by  a  seizure,  which 
was  not  insured  against.    I  therefore  venture  to  state,  as  law,  that 

A  loss,  before  seizure  for  forfeiture,  is  recoverable  after  seizure. 

197.  The  preceding  case  is  not  precisely  equivalent  to  that  of 
loss  before  stoppage  in  transitu.  It  has  been  decided  in  one  case 
that  a  stoppage  in  transitu  annulled  the  sale  ab  initio,  and  conse- 
quently, in  such  case,  it  would  divest  the  consignee  of  all  insura- 
ble interest  to  which  the  policy  could  apply.^  But  the  decision 
was  put  upon  the  circumstances  of  that  case,  and  does  not  profess 
to  adopt  a  general  doctrine  to  that  effect,  for  the  general,  well- 
established  doctrine  on  the  subject  is,  that,  where  goods  ordered 
are  once  delivered  to  the  carrier,  so  as  to  render  the  party  who 
ordered  them  liable  for  the  price,  he  is  not  discharged  from  his 
liability  by  their  being  stopped  in  transitu  by  reason  of  his  insol- 
vency or  refusal  to  pay  on  the  arrival  of  the  goods,  if  so  agreed. 
In  such  case  the  vendor  exercises  a  right,  which  is  secured  by  a 
lien,  and  is  accountable  for  the  proceeds  of  the  goods. 

The  vendee,  therefore,  evidently  has  an  insurable  interest  in  the 
goods  to  their  full  value,  after,  as  ivell  as  before,  they  are  stopped 
in  transitu ;  and,  in  the  adjustment  of  a  salvage  loss  or  construct- 
ive total  loss,  is  accountable  to  his  underwriters  for  the  salvage 
that  goes  to  diminish  the  amount  for  which  he  is  liable  to  the  ven- 
dor, in  deduction  for  the  loss  under  his  insurance.- 


1  Clay  »'.  Harrison,  1  Lloyd  &  Wcls.     ably  laid  down   in   the   note  to  the 

104.  above   case  of  Clay  v.  Harrison  by 

~  This   doctrine    is    distinctly   and     the  reporters,  and  the  positions  taken 


SECT.  I.]  AVIIAT  INTEREST   IS   SUFFICIENT.  125 

198.  The  laiu  seeks  to  protect  the  owner  against  the  loss  of  his 
property,  and  with  it  his  insurable  interest,  in  consequence  of  a 
forfeiture  by  the  act  of  a  party  into  whose  possession  it  has  come 
without  his  authority  or  consent. 

Where  property  illegally  captured  is  recaptured,  and  the  recap- 
tor  commits  an  act  of  smuggling,  it  has  been  held  not  to  be  thereby 
forfeited.^ 

199.  In  regard  to  the  requisites  to  a  change  of  interest  in  an 
enemy^s  ship,  Lord  Eldon  says:  "If  a  ship  be  taken  by  hostile 
force,  the  title  to  that  ship,  as  against  foreigners,  cannot  be  changed 
by  any  act  of  local  legislation,  but  the  ship  must  be  condemned  in 
a  court  proceeding  according  to  the  law  of  nations,  on  rules  bind- 
ing, not  only  on  subjects  of  the  country  where  the  court  is  held, 
but  on  foreigners  who  are  not  so  ; "  ^  and  the  insurable  interest  of 
the  owner  will  accordingly  continue  notwithstanding  a  condemna- 
tion by  an  incompetent  tribunal. 

200.  A  consul  can  have  no  judicial  jurisdiction  in  any  country, 
except  what  is  authorized  by  the  government  of  such  country ;  and 
his  decrees  will,  therefore,  affect  the  insurable  interest  in  any  pro- 
perty only  as  far  as  his  jurisdiction  is  so  authorized. 

It  has  been  a  practice  of  the  French  government,  since  1793, 
to  grant  commissions  to  its  consuls  in  foreign  countries  to  hold 
prize  courts.^  A  question  has  been  made,  whether  the  title  to  a 
ship,  acquired  by  a  condemnation  and  sale  under  a  decree  of  one 

by  the  court  respecting  the  effect  of  W.  W.  Story  on  Sales,  c.  11,  s.  320, 

the  stoppage  in  transitu  in  annulling  and  2  Kent's  Com.  Lect.  39,  s.  11, 

the  contract  of  sale  ab  initio,  is  ques-  p.  551  of  6th  ed.  1848  ;    Stanton  v. 

tioned  and  shown  to  be  erroneous  in  Eager,  16  Pick.  467  ;  Jordan  v.  James, 

the  particular  case.    The  stoppage  of  5  Hamm.  Ohio  R.  88  ;  Feise  v.  Wray, 

the  goods  in  transitu  by  the  vendor  3  East,  93. 

cannot   operate    as  a  revendication  i  TheBelloCorrunes,6  Wheat.  152. 

■without  the  consent  of  the  vendee.  2  Lucgnau.  Craufurd,  5  B.&P.  319. 

See  Kymer  v.  Suwercropp,  1  Camp.     See  also v.  Sands,  10  Mod.  79, 

109;  and  other  authorities  cited  by  where  possession  by  captors  four  years 

counsel  in  the  above  case  of  Clay  v.  without  condemnation  is  held  not  to 

Harrison.     See  also  Newhall  v.  Var-  change  the  property, 

gas,  15  Maine  R.  93,  and  cases  cited.  3  Robinson's  Col.  Mar.  32,  n. 
11* 


126  INSURABLE   INTEREST.  [CHAP.  III. 

of  these  tribunals,  gave  to  the  purchaser  an  insurable  interest.  A 
Dutch  vessel  was  condemned  at  Bergen,  in  Norway,  by  the  French 
consul  there,  and  purchased  under  that  decree  by  a  Danish  sub- 
ject, who  sold  her  to  the  assured.  A  loss  happening,  his  interest 
was  disputed.  Lord  Kenyon  said  to  the  jury,  that  "the  sentence 
of  a  French  court,  in  a  country  out  of  the  jurisdiction  of  France, 
had  been  wisely  held  not  to  change  the  property  ;  but  where  it 
had  been  acquiesced  in,  in  that  country,  it  might  make  a  differ- 
ence." ^  The  French  writers  are  of  opinion,  that  these  courts  are 
not  legal,  unless  their  establishment  is  acquiesced  in  and  sanctioned 
by  the  government  of  the  country  in  which  they  are  established  ; 
and,  accordingly,  unless  they  are  so  sanctioned,  their  decrees  have 
no  force  whatever  in  changing  the  title  of  thejproperty  condemned 
by  them.2 

It  has  been  laid  down,  that  consent  by  treaty  is  requisite  to  the 
establishment  of  any  such  foreign  consular  court  in  the  United 
States.^ 

201.  A  creditor,  merely,  as  such,  has  no  insurable  interest  in 
the  property  of  his  debtor. 

202.  Advances  for  repairs  of  a  ship  give  no  insurable  interest 
in  it,  unless  when  secured  by  a  lien  by  law  or  contract.'* 

Where  money  was  advanced  to  the  master  of  a  ship  to  pay  for 
repairs  in  Canada,  and  he  drew  a  bill  on  his  owners  in  London  for 
the  amount,  with  orders,  in  case  it  should  be  dishonored,  to  insure 
the  ship,  it  was  held  that  this  did  not  give  to  the  holder  of  the  bill 
an  insurable  interest  in  the  vessel,^  though  the  payee  recovered 
against  the  master  the  amount  of  the  premium  paid  for  the  insur- 
ance. 

203.  Where  the  proceeds  of  goods  shipped  to  a  foreign  port 
are  payable  to  a  creditor  of  the  shipper,  he  has  an  insurable  inte- 
rest in  respect  to  the  risks  of  the  voyage,  which,  however,  ought  to 

1  Smitli  V.  Surridgc,  4  Esp.  25.  4  Buchanan  v.  Ocean  Ins.  Co.,  6 

'■i  ()j)inion   of  M.   Tortalis,  cited  6  Cowcn,  318. 

Wheat.  150.  5  Tasker  v.  Scott,  6  Taunt.  234;  1 

8  Glass  V.  Sloop  Betsey,  3  Dall.  16.  Marsh.  R.  556. 
See  eases  infra,  titles  Kvidcncc,  Judg- 
ment. 


SECT.  I.]  WHAT   INTEREST   IS    SUFFICIENT.  127 

be  specially  described  in  the  policy,  unless  the  goods  are  consigned 
to  him  or  his  agent. ^ 

204.  It  is  a  familiar  doctrine,  that  a  partij,^  having  a  lien  on  a 
vessel  or  cargo  under  a  contract  for  advances,  may  be  rightfully 
considered  as  the  special  owner  of  them  to  the  extent  of  those 
advances,  and,  as  such,  may  protect  himself  by  insurance  ;  and 
that  a  creditor,  to  tvhom  goods  are  assigned  as  collateral  security, 
has  an  insurable  interest  in  them  not  exceeding  the  amount  of  his 
debt.3 

205.  The  party  insured  has  an  insurable  interest  in  the  solvency 
of  his  underwriters,  since  they  are  conditionally  responsible  to 
him.'' 

206.  An  insurance  to  the  full  value  does  not  exhaust  the  insur- 
able interest  of  the  assured,  unless  the  policy  contains  the  clause 
relating  to  prior  insurance,  nor  even  then,  for  he  can,  notwith- 
standing, make  double  insurance  in  simultaneous  policies,^  which  is 
in  effect  a  mere  insurance  of  the  solvency  of  each  set  of  under- 
writers, by  the  policies  of  the  others,  for  he  can  recover  but  one 
indemnity  from  all. 

207.  So,  if  insurance  is  made  against  certain  risJcs,  the  assured 
still  has  an  insurable  interest  to  the  full  value  against  other  risks. 

208.  A  partner,   equally   interested  with    his    copartner,   and 


1  See  Aklrich  v.  Equitable  Safety  of  respondentia.  In  giving  opinions 
Ins.  Co.,  1  Woodb.  &  Minot,  272.  In  on  a  policy  intended  to  cover  the  inte- 
Palmer  v.  Pratt,  2  Bing.  185,  the  de-  rest  of  the  lender,  Pai-k,  J.,  considered 
cision  is  against  the  assured  in  a  policy  it  to  be  "  the  duty  of  the  court  to  re- 
intended  to  cover  such  an  interest,  strain  these  novelties  ; "  and  Bur- 
but  the  interest  was  not  properly  rough,  J.,  was  opposed  to  introducing 
stated  in  the  policy.  The  case  was  "new  modes  of  expression  into  poli- 
one  of  advances  made  in  London  to  cies  of  insurance."  These  are  cer- 
the  master  of  an  East  India  vessel  to  tainly  very  objectionable  considera- 
purchase  goods  for  his  adventure,  the  tions  to  influence  a  judicial  decision, 
consignee  in  India  being  ordered  to  2  Seamans  v.  Loring,  1  Mason,  127. 
pay  the  proceeds  over  to  the  agent  of  3  Wells  v.  Philadelphia  Ins.  Co.,  9 
the  lender,  for  whose  security  insur-  Serg.  &  E.  103,  and  s.  4,  5,  7,  9,  infra, 
ance  was  to  be  made.  This  was  a  4  Emerigon,  tom.  1,  c.  1,  s.  2. 
form  of  contract  which  had  prevailed  5  Wiggin  v.  Suffolk  Ins.  Co.,  18 
for  some  ten  or  twelve  years  instead  Pick.  145. 


128  INSURABLE   INTEREST.  [CHAP.  III. 

largely  in  advance  to  the  partnership  concern,  has  an  insurable 
interest  in  the  ivhole  stock  to  its  full  value. 

It  is  held  in  Louisiana  that  he  may  insure  it  to  its  full  value  in 
his  own  name,  and  on  his  own  account.^ 


SECTION    II.       THE    LEGALITY    OF    THE    INTEREST. 

209.  TirE  insurable  interest  in  property  may  be  extinguished  by 
a  'prohibition  of  insurance  upon  it.^ 

210.  So  insurance  upon  a  subject  is  void  if  the  interest  insured 
is  illegal,  or  if  the  contract  contemplates  an  unlaivful  use  of  it? 

Thus,  a  policy  on  a  cargo  imported  from  a  foreign  port,  with 
which  intercourse  is  prohibited  by  the  law  of  the  place  where  the 
insurance  is  effected,  is  void.* 

If  the  trade  be  illegal,  it  defeats  the  policy  on  the  ship,  as  well 
as  that  on  the  cargo.^ 

Ships  or  goods  destined  in  contravention  of  the  monopoly  granted 
by  law  to  the  British  East  India  or  South  Sea  Company,  cannot 
be  effectually  insured  in  England.*^ 

So  insurance  on  a  ship  not  manned  in  conformity  to  the  naviga- 
tion laws  of  the  place  where  the  policy  is  made,  and  where  she 
beloncjs,  has  been  held  to  be  void." 

This  decision  is,  however,  a  very  stringent  application  of  the 
doctrine  in  question,  since  the  illegality  is  not  in  the  contract  nor 
in  the  property  or  the  use  of  it,  but  in  an  incidental  collateral  de- 


1  Millaudon  v.  Atlantic  Ins.  Co.,  8  Sbcarman,  1  Peters's    S.    C.    Eep. 
La.  R.  557.  98. 

2  As  on  births  and  christenings,  G  5  Gray  v.  Sims,  3  Wash.  C.  C.  Rep. 
Geo.  I.  c.  18  ;  price  of  public  stocks,  276. 

7  Geo.  II.  c.  18,  8.  4  ;  the  slave-trade,  ^  Camden  v.  Anderson,  5  T.  R.  709  ; 

47  Geo.  HI.  c.  30  ;  the  codes  of  other  1  B.  &  P.  272 ;  Morck  v.  Abel,  3  B.  & 

European  States  prohibit  insurance  P.  35 ;  Chalmers  v.  Bell,  3  B.  &  P. 

in  divers  cases.  604  ;  Dunlop  v.  Gill,  1  B.  &  A.  334  ; 

3  Redmond  v.  Smith,  7  Mann.  &  Jacob  v.  J'Anscn,  3  Taunt.  534 ;  Wil- 
Grang.  457.  kinson  v.  Londonsack,  3  M.  &  S.  117. 

4  The  United  SUitcs  i-.  The  Paul  7  guart  v.  Powell,  1  B.  &  Ad.  266, 


SECT.  II.]       THE  LEGALITY  OF  THE  INTEREST.  129 

linquency  for  which  the  law  itself  prescribes  the  forfeiture,^  and 
which  may  be  classed  with  the  exceptions  specified  below. 

Before  the  prohibition  of  the  slave-trade  by  a  British  statute,^ 
it  was  required,  that  the  captain  of  a  slave-ship  should  have  a  cer- 
tain description  of  certificate.  It  was  held  that,  by  the  want  of 
such  certificate  on  the  part  of  the  captain  employed,  a  voyage  was 
rendered  illegal.^ 

So  a  policy  on  a  voyage  in  violation  of  an  embargo,  laid  by  the 
government  of  the  country  to  which  the  owner  of  the  property  be- 
longs, is  void.* 

In  like  manner,  insurance  was  defeated  by  an  evasion  of  the 
act  of  Parliament  requiring  vessels  to  sail  with  convoy.^ 

Where,  in  pursuance  of  law,  a  bond  was  given  conditioned  to 
employ  a  cargo  in  trade  on  the  coast  of  Africa,  it  was  held  that, 
by  the  forfeiture  of  the  bond,  the  insurance  on  the  cargo  was  de- 
feated.*^ 

Where  the  parties  being  citizens  of  the  United  States  stipulated 
against  any  exception  "on  account  of  ports  interdicted  by  the  laws 
of  the  United  States,"  and  the  ship  was  destined  to  such  a  port, 
the  policy  was  thereby  made  void.''' 

211.  Though  there  is  no  express  prohibition  in  respect  to  a 
subject,  still,  if  insurance  upon  it  is  contrary  to  the  spirit  and  gene- 
ral principles,  or  what  is  called  "the  policy^'  of  the  law,  the  owner 
cannot  make  a  valid  insurance  upon  it.^ 

Thus,  an  assured  cannot  be  protected  by  insurance  against  loss 
and  damage  by  his  own  crimes,  frauds,  and  misconduct. 

1  See  Deshonu.  Merchant's  Ins.  Co.,  c  Gibson  v.  Service,  5  Taunt.  433; 
11  Mete.  199.  S.  C,  1  Marsh.  K.  119. 

2  31  Geo.  III.  c.  54,  s.  2.  7  Russell  v.  Degrand,  15  Mass.  R.  35. 

3  Farmer  v.  Legg,  7  T.  R.  186.  8  Mount  v.  Waite,  7  Johns.  434 ; 

4  Dalmada  I'.  Motteux,  Park,  357.  Jones  v.  Randall,  Cowp.  37;   LofFt, 

5  Ingham  u.  Agnew,  15  East,  517 ;  383  ;  Carter  v.  Boehm,  3  Burr.  1905  ; 
TVainhouse  v.  Cowie,  4  Taunt.  178;  S.  C,  1  Bl.  593  ;  Da  Costa  v.  Jones, 
Darby  v.  Newton,  6  Taunt.  544  ;  Wesket,  tit.  Wager,  a.  3  ;  S.  C,  Cowp. 
Wake  V.  Atty,  4  Taunt.  493.  See  729 ;  Roebuck  v.  Hammerton,  Cowp. 
Metealf  v.  Parrj',  4  Camp.  123  ;  Car-  737. 

stairs  t'.  AUnutt,  3  Camp.  497;  Hen- 
derson V.  Hind,  1  Taunt.  250. 


130  INSURABLE   INTEREST.  [CHAP.  III. 

Upon  the  same  ground,  wagering  policies  have,  been  held  void 
by  some  courts.  Mr.  C.  J.  Dana,  of  Massachusetts,  says:  "As 
wager  policies  are  injurious  to  the  morals  of  the  citizens,  and  tend 
to  encourage  an  extravagant  and  peculiarly  hazardous  species  of 
gaming,  they  ought  not  to  receive  the  countenance  of  this  court."  ^ 
"They  are,"  says  Chief  Justice  Parker,  "against  the  policy  of 
our  laws."  ^     And  they  are  held  to  be  illegal  in  Pennsylvania.^ 

Such  insurances  were,  however,  considered  to  be  legal  in  New 
York,*  before  the  prohibition  of  them  by  the  Revised  Statutes  of 
that  State. 

In  England  a  wagering  policy  is  not  considered  to  be,  by  its 
essential  character  as  a  wager,  so  injurious  to  morals  and  inconsist- 
ent with  the  public  interest,  as  to  be  void  at  the  common  law  inde- 
pendent of  the  statute.^  Yet  the  Chancellor  required  proof  of 
interest,  in  one  case,  on  a  policy,  which  was  a  wagering  one  in 
form.^ 

If  the  wager,  whether  by  a  policy  or  otherwise,  creates  a  bias 
in  the  discharge  of  a  public  duty,  or  is  otherwise  against  the  policy 
of  the  laws  and  the  public  interest,  it  is  void  at  the  common  law.'^ 
And  it  was  probably  upon  this  ground  that  Lord  Mansfield  said, 
"Though  every  man  had  an  interest  in  the  events  of  war  and 
peace,  yet  he  doubted  whether  that  was  an  insurable  interest."^ 

A  policy  made  in  New  York  upon  a  ticket  in  a  lottery  out  of 
that  State,  was  held  to  be  illegal,  on  the  ground  that  a  contract  is 


1  Amorj'  V.  Gilman,  2  Mass.  R.  1.  2  Str.  1250;  Thelluson  v.  Fletcher, 
See  also  Stetson  r.  INlass.  Mut.  Fire  Doug.  301 ;  Goddart  v.  Garrett,  2 
Ins.  Co.,  4  Mass.  R.  330.  Vern.    2G9  ;    Wittingham  v.   Tborn- 

2  Lord  V.  Dall,  12  Mass.  Rep.  115.  borough,  Free,  in  Chanc.  20;  Wesk. 
See  also  Iloit  v.  Ilodgc,  G  New  Ilamp.  tit.  Lives,  n.  7  ;  Good  v.  Elliott,  5  T. 
R.  104,and  Collamoreu.  Day,  2'Verm.  R.  G93  ;  Assievedo  v.  Cambridge,  10 
R.  144.  Mod.  77  ;  De  Paiba  v.  Ludlow,  1  Com. 

3  Pritchct  V.  Ins.  Co.  of  North  Ame-  R.  361. 

rica,  3  Yoates,  461.  c  Le  Pyprc  v.  Farr,  2  Vern.  716. 

4  Ciendening  v.  Church,  3  Caincs,  7  Allen  u.  Ilcarne,  1  T.R.  56;  Athcr- 
141 ;  Juhel  v.  Church,  2  Johns.  Cas.  ford  i-.  Beard,  2  T.  R.  610. 

333.  8  Mollison  v.  Staples,  Park,  640,  n. 

6  19  Geo.  H.  c.  37,  s.  1 ;  Da  Costa  See  also  Wharton  u.  De  la  Rive,  Park, 

V.  Firth,  4  liurr.  1 9CC  ;  Dean  v.  Dicker,  573  ;  Marshall,  642,  n. 


SECT.  II.]  THE   LEGALITY   OF   THE   INTEREST.  131 

void  "if  it  be  against  the  principles  of  public  policy,  equally  as  if 
it  contravened  a  positive  law  ; "  and  insurance  on  the  tickets  of 
lotteries  within  the  State  was  prohibited  by  a  statute,  the  reasons 
of  which,  as  alleged  in  the  statute,  were,  that  such  insurances  are 
against  public  policy,  and  of  an  immoral  tendency  ;  and  the  court 
say,  the  reasons  of  the  act  extend  to  all  insurances  of  lottery  tick- 
ets, though  not  comprehended  in  its  express  provisions.^ 

212.  The  wages  of  mariners  are  universally  considered  not  to 
be  insurable  by  the  mariners  themselves  ;  not  on  account  of  the 
insufficiency  of  the  interest  and  risk,  but  lest  their  motives  to  exer- 
tion for  the  safety  of  the  ship  and  cargo  should  be  diminished.^ 

The  mate's  ivages  are  not  insurable,  nor  is  any  privilege  he  may 
have  in  the  vessel  instead  of  wages.  But  he  may  insure  his  pro- 
perty on  board,^  though  bought  with  the  money  received  as  wages.* 

A  mariner  having  a  privilege  of  carrying  a  certain  quantity  of 
goods,  may  insure  the  goods,  for  it  is  the  freight,  and  not  the  goods 
themselves,  that  constitutes  a  part  of  his  wages.^ 

213.  The  captain  may  insure  his  wages,  commissions,  or  privi- 
lege on  board  of  the  vessel,  as  he  is  presumed  to  be  a  man  of  more 
trust  than  a  sailor.*^ 

214.  It  is  a  general  principle  of  law,  that,  if  a  contract  be  in- 
tended  to  indemnify  the  owner  from  loss  on  property  by  reason  of 
its  being  implicated  in  an  illegal  trade,  or  applied  to  an  illegal 
use,  or  which,  according  to  the  laws  of  the  country  where  the  con- 
tract is  made,  it  is  criminal  for  the  oivner  to  hold,  such  contract  is 
void ;  and  accordingly,  the  owner  has  no  legally  insurable  interestJ 

215.  An  act  subject  by  law  to  a  penalty,  though  not  prohibited 
in  direct  terms,  is  illegal.^ 

1  Mount  V.  Waite,  7  Jolins.  434.  6  King  v.  Glover,  5  B.  &  P.  20G  ; 

2  1  Emer.  235,  c.  8,  s.  10;  Lucena     Fostei-  v.  Iloyt,  2  Johns.  Cas.  327. 

V.  Craufurd,  5  B.  &  P.  294;  Wesk.  tit.  7  Armstrong  v.  Toler,  11  Wheat. 

Wages;   The  Juliana,   2   Dod.   509;  258,  and  authorities  there  cited  ;  Pat- 

The  Lady  Durham,  3  Hagg.  201 ;  The  ton  v.  Nicholson,  3  Wheat.  204 ;  Bartle 

Neptune,  1  id.  227.  v.  Colman,  4  Peters's  Sup.  C.  E,  184  ; 

a  Webster  v.  De  Tastet,  7  T.  R.  157.  1  Greenl.  Ev.  s.  281,  and  cases  there 

4  1  Mag.  18.  cited ;  Chitty  on  Contracts,  519-527. 

5  Galloway  v.  Morris,  3  Yeates,  445.  8  J)q  Begnis  v.  Armistead,  10  Bing. 


132 


INSURABLE   INTEREST. 


[chap.  III. 


216.  A  treaty  made  by  competent  authority,  has  the  force  of 
law  in  respect  to  the  subjects  of  tht  contracting  governments.^ 

217.  If  a  contract  admits  of  a  legal  performance,  though  its 
terms  are  such  as  to  admit  of  being  applied  to  what  is  not  so,  a 
legal  intent  is  presumed,  or  at  least  may  be  proved,  and  so  the  con- 
tract be  held  valid : 

As  where  the  destination  is  described  to  be  to  ports  on  a  coast 
generally,  and  some  of  them  are  lawful,  and  others  unlawful,  the 
destination  is  presumed,'-^  or  at  least  may  be  shown,  to  be  to  the 
lawful  ports.^ 

218.  Where  a  risk,  legal  in  its  commencement,  becomes  illegal 
by  some  subsequent  law,  the  acts  of  the  assured  in  prosecuting  it 
will  not  be  illegal,  and  his  interest  in  the  subject  in  respect  to  such 
acts  will  not  cease  to  be  insurable  until  he  has  notice  of  the  law, 
or  it  is  so  promulgated  that  he  is  presumed  to  have  such  notice.^ 


107 ;  Drury  v.  De  Fontaine,  1  Taunt. 
131 ;  Gallina  v.  Laborie,  5  T.  R.  242 ; 
Eibbans  v.  Crickett,  1  B.  &.  P.  2G4 ; 
Blackford  v.  Preston,  8  T.  K.  89  ;  Law 
V.  Hodson,  2  Camp.  147;  S.  C,  11 
East,  300 ;  Per  Story,  J.,  in  Clark  v. 
Protection  Ins.  Co.,  1  Story's  R.  109. 

1  The  Neutralitet,  3  Chr.  Rob.  295, 
The  Eenrom,  2  id.  1 ;  1  Arnould's  Mar. 
Insurance,  pp.  714,  715,  c.  5,  s.  2,  a.  2. 
Lord  Mansfield  seems  to  have  regarded 
the  commercial  stipulations  by  treaty, 
as  standing  upon  the  same  footing  as 
the  revenue  laws  of  foreign  countries, 
and  not  binding  upon  the  parties  to  a 
policy.  Lever  v.  Flcchcr,  1  Park,  Ins., 
8th  ed.  507  ;  S.  C,  Marsh.  Ins.  2d  cd. 
01. 

2  Anon.,  1  Chit.  R.  49. 

3  Anon.,  1  Chit.  49  ;  Gill  v.  Dunlop, 
7  Taunt.  1 93  ;  Muller  v.  Thompson,  2 
Camp.  010  ;  Wright  v.  Welbie,  1  Chit. 
49 ;  Jcreniy'.s  Judex,  1819,  p.  74 ;  Hol- 
land V.  Ilall,  1  B.  &  Aid.  53 ;  llaincs 
V.  Busk,  5  Taunt.  521  ;  Thornton  v. 


Lance,  4  Camp.  231 ;  1  Greenl.  Ev., 
s.  34,  35,  80,  81. 

4  Walden  v.  Phoenix  Ins.  Co.,  5 
Johns.  310.  It  was  a  case  of  the  pro- 
secution of  the  adventure  after  the 
embargo  act  of  1807  was  passed.  The 
case  involves  the  question,  what  is 
a  promulgation  of  a  law  to  make  it 
binding,  and  the  doctrine  assumed  is, 
that  the  assured  was  not  affected 
until  he  had  notice,  or  must  be  pre- 
sumed to  have  had  notice  of  it  from 
the  fact  of  its  passage  in  New  York 
where  he  resided,  in  which  port  the 
vessel  was  seized  when  putting  out 
to  sea.  This  is  obviously  equitable, 
and  is  within  the  principle  of  a  pro- 
vision of  the  Constitution,  since  to 
subject  one  to  punishment  for  vio- 
lating a  law  where  it  could  not  pos- 
.sibly  be  known,  is  to  give  it,  prac- 
tically, an  ex  post  facto  operation. 
See  3  Story  Com.  on  Const.  §  1340, 
and  cases  there  cited  contra. 


SECT.  II.]  THE    LEGALITY   OP   THE   INTEREST.       '  133 

219.  Where  any  material  part  of  an  integral  contract  is  illegal, 
the  whole  is  thereby  tainted  and  void.^ 

220.  A  mere  intent  not  acted  upon  or  agreed  upon,  is  not  a 
subject  of  judicial  cognizance,  either  civilly  or  as  a  crime. 

Mr.  Justice  Story  says:  "A  mere  Intention  to  do  an  illegal  act, 
or  other  act  which  would  avoid  a  policy,  if  done,  but  which  has 
never  been  consumnnated  by  any  act,  has  never,  as  far  as  I  know, 
been  deemed  per  se  to  vitiate  the  policy."  ^  This  was  said  in 
reference  to  a  case  where  no  illegality  of  the  subject-matter,  or  of 
any  stipulation,  appeared  on  the  face  of  the  policy.^ 

Sir  William  Scott  says,  that,  in  order  to  furnish  ground  for  the 
condemnation  of  property,  "there  must  be  an  act  of  trading  to  the 
enemy  country,  as  well  as  an  intention.  No  case  has  been  pro- 
duced in  which  the  mere  intention  to  trade  to  an  enemy's  country 
has  enured  to  condemnation."  And  though  the  voyage  was  to- 
wards a  colony  supposed  by  the  party  to  belong  to  the  enemy, 
but  which  had  been  captured  by  his  own  nation  before  the  arrival 
of  the  ship,  it  was  held  not  to  be  a  trading  to  the  enemy  country.* 

"Where  the  country  is  known  to  be  hostile,"  says  the  same 
judge,  "a  commencement  of  a  voyage  towards  that  country  may 
be  a  sufficient  act  of  illegality  ;  but  where  the  voyage  is  under- 
taken without  that  knowledge,  the  subsequent  event  of  hostility 
will  have  no  such  effect."  ^ 

It  was  held  by  the  English  Court  of  King's  Bench,  that,  if  a 
cargo  be  taken  to  be  delivered  at  a  port  where  its  delivery  is  ille- 

J  Bird  V.  Pigou,  2  Selw.  N.  P.  991,  strong  v.  Toler,  11  Wheat.  K.  258; 

n.,  London  ed.,  1831,  994,  n.,  per  Lord  Patton  v.  Nicholson,  3  AVheat.  R.  204, 

Kenyon  ;  CaiAden  v.  Anderson,  5  T.  and  cases  there  cited ;  Ex'rs  of  Cam- 

R.  709 ;  1  B.  &  P.  272.     The  inquiry  bioso  v.  Assignees  of  MafEtt,  2  Wash, 

as  to  what  illegality  -will  defeat  a  con-  C.  C.  E..  98 ;  Bensley  v.  Bignold,  5  B. 

tract,  and  what  will  be  considered  to  &  A.  335  ;  2  Greenl.  on  Ev.,  s-  402. 
be  merely  collateral  and  incidental,  is        2  i  Story's  R.  124,  Clark  v.  Protec- 

an  extensive  subject  common  to  insur-  tion  Ins.  Co. 

ance  and  other  contracts.    For  autho-        3  And  see  Waters  v.  Allen,  6  Hill, 

rities  on  the  subject  of  the  illegality  421. 

of  contracts,  see  Chitty  on  Contracts,        4  The  Abbey,  5  Chr.  Rob,  251. 
3d  London  ed.,  reprinted  at  Spring-        5  Jbid.  254. 
field,  1842,  pp.  697,  698  ;  also  Arm- 
VOL.   I.  12 


134  INSURABLE   INTEREST.  [CIIAP.  III. 

gal  by  the  laws  of  the  place  where  the  policy  is  made,  the  taking 
of  the  cargo  on  board  and  transporting  it  is  illegal,  and  the  policy 
upon  the  cargo  for  the  voyage  is  void,i  for  the  commencement  of 
the  voyage  is  an  act  done  in  execution  of  the  illegal  intent. 

221.  A  contravention  of  law,  though  it  have  relation  to  the 
subject  or  the  risk,  still  will  not  affect  the  insurance  if  it  be  remote 
and  distinct  from  the  contract,  or  only  collateral  and  concomitant 
with  it,  or  incidental,  or  merely  precedent  or  subsequent,  and  not 
constituting  a  part  of  it  or  embracing  and  imbuing  its  stipulations. 

Thus  it  is  not  a  good  objection  against  an  insurance  on  goods, 
that  they  were  purchased  with  the  proceeds  of  a  former  cargo  ex- 
ported in  contravention  of  law.  Kenyon,  C.  J.:  "If  this  objec- 
tion were  well  founded,  in  deciding  on  a  claim  made  on  a  policy 
of  insurance,  it  would  be  necessary  to  examine  the  past  conduct  of 
the  assured,  to  see  whether  they  had  illegally  acquired  the  funds 
with  which  the  goods  were  purchased.  We  cannot  enter  into  con- 
siderations of  that  kind  ;  we  must  confine  ourselves  to  the  imme- 
diate transaction  before  us."  ^ 

So,  where  the  master,  in  the  course  of  the  voyage,  took  on  board 
a  smuggled  chain-cable,  though  he  had  intended  so  to  do  at  the 
time  of  sailing,  Mr.  Justice  Story  said,  it  "was  a  collateral  act,  no 
more  touching  the  legality  of  the  voyage  than  if  there  had  been 
taken  on  board  some  illegal  ship-stores,"  and  accordingly  held  that 
the  policy  on  the  ship  was  not  thereby  defeated.^ 

So,  not  stowing  water  below  deck,  as  required  by  statute,'*  or  not 
taking  on  board  a  pilot,  where  a  forfeiture  is  incurred  thereby,^  does 
not  render  the  voyage  illegal. 


1  Lubbock  V.  Potts,  7  East,  449.  thcrs  v.  Gray,  15  East,  35;  Ward  v. 

2  Bird  V.  Apiileton,  8  T.  R.  5G2;  Wood,  13  Mass.  R.  539.  See  infra, 
and  sec  Ocean  lus.  Co.  v.  PoUeys,  sect.  8,  as  to  contracts  made  through 
13  Peters's  S^  C.  R.  157 ;  Armstrong  v.  necessity. 

Toler.ll  Wheat.  258;  Ward  r.  Wood,  4  Deshon   i'.  Merchants'  Ins.    Co., 

13  Mass.  R.  539,  540.  11  Mete.  200. 

3  Clark  V.  Protection  Ins.  Co.,  1  5  Keelcr  v.  Firemen's  Ins.  Co.,  3 
Story's  R.  109.  See  also  Warren  v.  Hill,  250;  Flanigan  v.  Washington 
Manuf.  Ins.  Co.,  13  Pick,  518 ;  John-  Ins.  Co.,  7  Penn.  R.  307. 

son  V.  Iludbou,  11  East,  180;  Carru- 


SECT.  II.]  THE   LEGALITY    OF   THE   INTEREST.  135 

222.  The  circumstance,  that  goods  are  the  proceeds  of  an  illegal 
trade  or  interest,  is  not  conclusive  of  the  illegality  of  the  owner's 
interest  in  them,  hut  it  is  a  matter  of  ordinary  practice,  ichere  the 
national  character  of  goods  is  in  question,  to  prove  the  ownership 
of  those  with  which  they  arc  purchased,  as  in  case  of  a  return 
cargo  purchased  with  the  proceeds  of  the  outward  one.' 

223.  It  being  illegal  to  buy  of  public  enemies,  or  to  sell  to  them, 
or  contract  with  them,  the  goods  and  ships,  and  any  other  subjects 
of  insurance,  embai-ked  in  such  intercourse,  or  destined  to  it,  or  to 
be  derived  from  it,  become  affected  by  the  prohibition.  Property 
or  interests,  so  employed,  or  so  situated,  cannot  lawfully  be  pro- 
tected by  insurance.- 

Such  a  contract  or^  trade  is  not  excused  on  the  ground  of  mis- 
take or  ignorance,  any  more  than  any  other  contravention  of  law.^ 

We  have  already  seen  that  underwriters  cannot  legally  con- 
tract with  or  in  favor  of  public  enemies  ;  and  on  the  same  princi- 
ple, they  cannot  insure  citizens  on  property  implicated  in  trade 
with  enemies.  The  illegality  of  such  trade  taints  all  the  property 
involved  in  it,  and  all  the  contracts  auxiliary  to  it. 

When,  however,  Lord  Mansfield  and  other  English  judges  favored 
insurance  on  behalf  of  public  enemies,  they  could  not  but  extend 
the  indulgence  to  trade  carried  on  with  them.  Accordingly,  in  a 
case  of  a  policy  on  goods,  bought  in  Holland  after  the  commence- 
ment of  war,  Duller,  J.,  said,  the  "underwriter  had  no  right  to 
go  into  the  state  of  the  property,  previous  to  the  time  when  he 
insured,"  and  could  not  object  that  it  had  been  purchased  of  the 
enemy.*     Mr.  Justice  Heath  concurred,  but  Mr.  Justice  Rooke 


iTheNancy,3Chr.  Rob.122;  The  Joseph,  1  Gall.  545;   The  Rapid,  8 

Rosalie  and  Betty,  2  id.  343  ;  The  Ro-  Cranch,  155  ;  and  see  3  Kent's  Com. 

salia  and  Elizabeth,  4  id.,  note  to  table  5th  ed.  253 ;  1  Emer.  c.  4,  s.  9  ;  Con- 

of  cases ;  The  Baltic,  1  Act.  Ap.  Cas.  sulat  de  La  Mar.,  c.  344 ;  Poth.  des 

25;   The  Margarette,  id.  333;  The  Ass.,  n.  95;   The  Eenrom,    2    Chr. 

Joseph,  8  Cranch,  451 ;  The  Caledo-  Rob.  1. 

nian,  4  Wheat.  100;    Carrington   v.  3  The    Compte   de  WohronzofF,  1 

The  Merchants'  Ins.  Co.,  8  Peters's  Chr.  Rob.  205  a. ;  The  Expedit  van 

S.  C.  R.  495.  Rotterdam,  1  id.  206. 

2  Le  Guidon,  c.  2,  a.  2  and  5 ;  The  4  Bell  v.  Gilson,  1  B.  &  P.  345. 


136  INSURABLE   INTEREST.  [CHAP.  III. 

was  inclined  to  dissent.  Lord  Mansfield  said,^  that  though  trade 
with  the  enemy  is  prohibited  by  the  niaritinie  law,  he  knew  of  but 
two  cases  to  that  effect  at  common  law,  seeming  to  intimate  a 
doubt  whether  it  was  in  fact  prohibited  at  common  law.  Nume- 
rous decisions  had  been  made  in  the  Admiralty,  and  in  the  House 
of  Lords,  that  trade  with  the  enemy  was  unlawful.^  Insurance  on 
such  a  trade  would  accordingly  have  been  void.  This  point  was 
considered  particularly  by  Sir  William  Scott,  in  1799,  in  the  case 
of  goods  imported  from  Holland  by  Englishmen,  while  that  coun- 
try was  at  war  with  England,  and  he  held,  that  the  goods  were 
subject  to  seizure  and  forfeiture.-^  And  soon  afterwards  Lord  Ken- 
yon  and  the  other  judges  of  the  King's  Bench  acquiesced  in  this 
opinion,  and  held,  that  an  insurance  of  go(^ds  so  iniported  was 
void.'' 

The  unlawfulness  of  trade  with  the  enemy  has  been  a  subject 
of  frequent  consideration  in  the  courts  of  the  United  States.  Mr. 
Justice  Story  says;  "I  lay  down  as  a  fundamental  proposition, 
that,  strictly  speaking,  in  war  all  intercourse  between  the  subjects 
and  citizens  of  the  belligerent  countries  is  illegal,  unless  sanctioned 
by  the  authority  of  the  government,  or  in  the  exercise  of  the  rights 
of  humanity."  ^  And  this  doctrine  is  generally,  and  at  least  all 
but  universally,  adopted  by  different  nations.^ 

224.  It  belongs  to  the  government  to  declare  war  and  make 
peace,  and  to  decide  what  territories,  municipalities,  and  communi- 
ties are  to  be  considered  hostile,  and  what  ones  friendly  ;  and  the 
established  notional  character  of  any  one  is  presumed  by  the  courts 
to  continue  until  a  nciv  one  is  recognized  by  the  government  J 

225.  It  is  usual  for  a  country  in  determining  who  are  to  be 
considered  its  enemies,  to  have  great  regard  to  the  government  de 
facto,  and  early  to  recognize  revolted  colonies  or  districts,  that 

1  Gist  V.  Mason,  1  T.  R.  84.  6  See  1  Duer,  Mar.  Ins.  417,  461. 

2  Cases  cited,  1  Chr.  Rob.  202,  &c.,  7  The  Manilla,  Echv.  Ad.  11. 1  ;  The 
in  the  case  ofTlic  Ilonp.  rellican,  Edw.  Ad.  R.  App.  1).;  City 

^  Tiie  J  loop,  1  Clir.  Uob.  196.    See  of  Berne  v.  Bank  of  England,  9  Ves. 

also  Tiie  Odin,  1  Chr.  Rob.  248.  817;  Gelston  v.  Iloyt.  13  Johns.  R. 

4  Totts  V.  Bell,  8  T.  R.  548.  501. 

5  The  Julia,  8  Cianch,  IHl. 


SECT.  II.]  THE   LEGALITY    OF   THE   INTEREST.  137 

maintain  an  independent  government,  as  having  ceased  to  retain 
the  national  character  of  the  country  from  which  they  have  re- 
volted, in  respect  to  trade  ;  as  was  done  by  Great  Britain  in  respect 
to  parts  of  the  island  of  St.  Domingo. ^ 

226.  Where  a  citizen's  proj)er(i/,  remaining  in  the  hostile  coun- 
try at  the  hreaHng  out  of  a  war,  is  imported  thence  by  him  during 
the  war,  it  is  presumed  to  be  a  trading  with  the  enemy? 

A  citizen's  property,  says  Mr.  Justice  Story,  "  cannot  be  re- 
moved with  safety  from  the  enemy's  country,  unless  under  the 
sanction  of  his  own  governnient,  because  the  law  would  never 
deem  that  a  reasonable  mode  of  conveying  property  which  involved 
in  it  a  trade  with  the  public  enemy."  ^ 

An  American  citizen  had  purchased  goods  in  England  before 
the  war  of  1812,  and  deposited  them  on  Indian  Island,  belonging 
to  the  British,  and  near  the  boundary  of  the  United  States,  and, 
after  the  breaking  out  of  the  war,  a  vessel  was  sent  from  Boston 
to  fetch  the  goods.  Both  vessel  and  cargo  were  forfeited,  and 
consequently  the  owners  of  neither  could  have  protected  their  inte- 
rest by  insurance.* 

Accordingly,  a  citizen  having  property  in  the  enemy  country  at 
the  breaking  out  of  a  war,  cannot  safely  withdraw  it  without  ob- 
taining a  license  of  his  own  government  for  the  purpose ;  ^  more 
especially  any  considerable  time  after  the  commencement  of  hos- 
tilities.^ And  insurance  upon  it  in  his  own  country  on  its  passage, 
being  withdrawn  without  a  license,  would  be  illegal  and  void. 

But  the  withdrawal  of  property  in  such  case  by  a  citizen,  with- 
out license,  under  circumstances  preventing  an  application  for  a 
license,  and  where  it  would  certainly  have  been  granted  if  applied 
for,  was  sanctioned  by  Sir  William  Scott.'' 


1  Johnson  v.  Greeves,  2  Taunt.  344  ;  5  Xhe  Lady  Jane,  1  Chr.  Rob.  202. 
Blackburn  v,  Thompson,  15  East,  6  The  St.  Lawrence,  M'Gregor's 
81.  Claim,  1  Gall.  471;  9  Cranch,  120. 

2  Cases  cited,  1  Chr.  Rob.  202,  &c..  See  also  The  William,  cited  1  Chr. 
case  of  The  Hoop.  Rob.   214  ;   Amory  v.  M'Gregor,  15 

3  The  Joseph,  1  Gall.  545.  Johns.  36 ;  and  The  Mary,  9  Cranch, 

4  The  Rapid,  8  Cranch,  155.     See  126. 

also  The  Alexander,  8  Cranch,  169.  '^  The  Madonna  del  Gracia,  4  Chr. 
12* 


138  INSURABLE  INTEREST.  [CHAP.  III. 

227.  If  a  citizen,  having  ordered  goods  from  abroad,  has  no 
opportunity  to  countermand  his  order  after  notice  of  a  war,  the 
importation  is  legale 

The  shipment  by  a  vessel  that  sailed  after  the  declaration  of 
war,  but  before  it  was  known  at  the  port  of  shipment,  was  sanc- 
tioned by  the  Supreme  Court  of  the  United  States.^ 

228.  If  a  contract  with  the  enemy  arises  from  compulsion  or 
stringent  necessity,  the  law  will  sanction  it? 

Thus,  where  a  British  prisoner  of  war  abroad  contracted  a  debt 
to  an  enemy  subject  for  his  necessary  subsistence,  the  contract 
was  enforced  in  England  after  peace.^ 

229.  So  a  party,  whose  property  has  been  seized  by  the  enemy, 
or  by  persons  with  whom  trade  is  interdicted,  may  lawfully  take 
such  goods  as  are  given  him  in  exchange. 

Trade  with  France  and  its  dependencies  being  interdicted  by 
an  act  of  Congress,  an  American  ship  was  driven,  by  stress  of 
weather,  into  Port  St.  Francois,  in  St.  Domingo,  a  French  port, 
where  a  part  of  the  cargo  was  seized  by  the  public  officers,  who 
forbade  the  exportation  of  the  rest,  but  gave  the  captain  leave  to 
exchange  it  for  the  produce  of  the  island.  It  was  held  that  the 
goods  obtained  in  exchange  might  be  insured.^  And  Chief  Justice 
Marshall  said,  in  delivering  the  opinion  of  the  court,  that,  even  if 
an  actual  and  general  war  had  existed  between  this  country  and 
France,  "this  would  not  have  been  deemed  such  a  traffic  with  the 
enemy  as  would  vitiate  the  policy  upon  the  new  cargo."  ^ 

230.  Articles  may  be  shipped  for  an  enemy^s  port,  at  the  time 

Rob.  195.     See  also  upon  this  subject  The  Freedcn,  id.  212;  The  Rapid,  8 

The   JufTrow   Louisa  Margaretta,    1  Cranch,  335. 

Chr.  Rob.  203 ;  S.  C,  1  B.  &  R.  349,  2  Tlic  IMcrriraac,  8  Cranch,  317. 

n.;  The  Rapid,  1  Gall.  295;  S.  C,  9  3  Griswold  I'.Waddington,  16  Johns. 

Cranch,  132;   The   St.  Rhilip,  cited  451. 

8  T.  R.  55C  ;  The  Eenigheid,  cited  1  4  Antoinc  v.  Morehead,  6  Taunt. 

Chr.  Rob.  210;  The  Fortuna,  1  Chr.  237;   and  sec  Grot,  de  Jur.  Bel.  et 

Rob.  211  ;    The  Mary,  1   Gall.  G20;  Pac.  1.  3,  c.  22  ;  Puffend.  1.  8,  s.  14; 

S.  C,  9  Cranch,  12G  ;  1  Duor,  Mar.  Vattel,  b.  3,  c.  16,  s.  264. 

Ins.  554,  Lcct.  0,  8.  9-11.  5  Jcnks  v.  Ilallett,  1  Caines,  60;  1 

1  The   JuflTrow    Catharina,  5   Chr.  Caines's  Cas.  in  Error,  43. 

Rob.   141;    The    Fortuna,  1   id.  11;  c  Hallctt  u.  Jenks,  3  Cranch,  210. 


'v. 


SECT.  II.]       THE  LEGALITY  OF  THE  INTEREST.  139 

in  possession,  or  reasonably  and  bona  fide  supposed  to  be  in  pos- 
session, of  (he  forces,  naval  or  military,  of  the  shipper'' s  own  coun- 
trij,  for  the  purpose  of  supphjing  such  forces. 

A  vessel  destined  to  Copenhagen,  with  supplies  intended  for  the 
fleet  under  Lord  Nelson,  left  the  Nore  three  days  after  the  time 
when,  by  the  articles  of  capitulation,  the  British  fleet  was  to  leave 
Copenhagen,  under  the  expectation  that  some  delay  might  occur 
to  the  fleet.  The  voyage  was  held  to  be  lawful,  and  the  insur- 
ance valid,  though  the  vessel  was  destined  to  an  enemy's  port.^ 

231.  Where  a  part  of  the  round  voyage  is  illegal,  and  another 
distinct  part  legal,  a  valid  insurance  may  be  made  on  ship  or  cargo 
for  the  legal  part ;  provided  the  ownership  does  not  render  the 
insurance  illegal. 

A  foreign-built  ship,  chartered  for  a  voyage  from  England  to  St. 
Michael's  and  back,  to  bring  a  cargo  of  fruit,  and  insured  for  the 
outward  voyage  only,  was  seized  at  St.  Michael's  before  the  ter- 
mination of  the  risk  under  the  policy.  It  was  objected  to  pay- 
ment of  a  loss  by  the  seizure,  that  the  importation,  into  England, 
of  a  cargo  of  fruit,  in  such  a  ship,  was  prohibited  by  statute,  as 
the  charter  was  outward  and  homeward,  and  so  it  was  one  entire 
voyage,  and  no  part  of  it  could  be  insured.  But  the  English 
Court  of  Common  Pleas  held  the  insurance  to  be  valid,  for  a 
license  might  have  been  obtained  for  the  homeward  voyage,  or  the 
master  might  have  refused  to  proceed  homeward  with  such  a  cargo 
on  account  of  its  being  illegal.^.  That  is  to  say,  up  to  the  time  of 
the  loss,  it  was  at  most  but  an  intent  to  contravene  the  law. 

So  where,  in  the  outward  voyage  to  India,  an  American  ship, 
insured  in  England,  took  a  cargo  of  cotton  at  Bombay  for  Canton, 
contrary  to  the  treaty  between  the  United  States  and  England, 
and  the  master  used  the  proceeds  of  the  cotton  in  purchasing  a 
cargo  at  Canton  for  Hamburg,  whitherward  he  sailed,  and  was 
captured  on  the  voyage  by  the  Erench,  the  jury  found  that  the 

1  Atkinson  v.  Abbott,  11  East,  135  ;  1  Chit.  R.  49,  and  GUI  v.  Dunlop,  and 

1  Camp.  535.     As  to  a  destination  to  other  cases  cited  supra,  No.  217. 

ports  on  a  coast  generally,  some  being  2  Sewell  v.  Royal  Exch.  Ass.  Co., 

hostile  and  others  neutral,  see  Anon.,  4  Taunt.  855. 


140  INSURABLE   INTEREST.  [CIIAP.  III. 

homeward  voj'^age  was  distinct  from  the  outward.  The  Court  of 
King's  Bench,  Lord  Kenyon  being  C.  J,,  held  a  policy  effected  in 
England  on  the  cargo  for  the  homeward  voyage,  to  be  valid. ^ 

But  in  another  case  Lord  Kenyon  gives  a  different  opinion. 
Speaking  of  a  voyage  from  the  United  States  to  Bordeaux,  Ma- 
deira, and  the  East  Indies,  he  remarked,  that,  "where  there  is  a 
legal  infirmity  in  any  part  of  an  integral  voyage,  it  renders  the 
whole  illegal,  so  as  to  prevent  a  recovery,  even  on  a  separate 
policy,  upon  any  part  of  it,  which,  distinct  from  the  other,  would 
have  been  lawful."  ^ 

Upon  this  case  Mr.  Justice  Story  ^  remarks,  that  "this  was  a 
mere  obiter  dictum,  and  it  is  somewhat  shaken,  if  not  overturned, 
by  the  decision  "  in  a  subsequent  case.^  And  he  further  says, 
that  "it  will  be  exceedingly  difficult,  in  point  of  principle,  to  dis- 
tinguish an  illegality  in  a  former  voyage,  and  that  in  a  prior  part 
of  the  same  voyage,  when  the  policy  covers  only  the  part  which 
is  legal." 

In  the  preceding  cases  no  illegality  appeared  on  the  face  of  the 
contract  of  insurance.  Where  such  does  appear,  the  whole  con- 
tract is  void,  as  in  case  of  an  agreement  to  employ  a  ship  in  an 
illegal  trade.^ 

If  the  contract  is  on  its  face  legal,  and  the  passage  or  adventure 
contracted  about  is  legal,  the  weightier  authority  seems  to  be  in 
favor  of  the  validity  of  the  contract,  though  the  subject  contracted 
about  may  be,  on  one  side  or  the  other,  precedent  or  consequent 
to  something  not  sanctioned  by  the  law. 

232.  Where  the  voyage  is  legal,  but  part  of  the  articles  of  the 
same  party  insured  in  the  same  policy  are  illegal,  and  a  part  legal, 
for  such  voyage,  according  to  the  cases  jyrepond crating,  both  in 
authority  and  number,  the  insurance  is  wholly  void,  upon  the 
alleged  ground  that  the  contract  is  entire,  and  the  tribunals  cannot 


•  Bird  V.  Apploton,  8  T.  R.  5G2.  4  Bird  v.  Appleton,  supra. 

2  Wilson  r.  Marryatt,  8  T.  R.  31,  ^  Holland  r.  Hall,  1  B.  &  Aid.  53. 
and  1  B.  &  P.  480.  See  remarks  of  Mr.  Duer,  1  Mar.  Ins., 

3  1  Story's  R.  126,  Clark  r.  Protec-  Vol.  I.  p.  397. 
tion  Ins.  Co. 


SECT.  II.]  THE   LEGALITY   OF   THE   INTEREST.  141 

discriminate  between  the  legal  and  illegal  part,  and  enforce  the 
former  and  declare  the  latter  void,  or,  as  it  is  more  frequently 
expressed,  the  illegal  part  contaminates  the  whole  contract,  and 
precludes  the  parties  from  producing  it,  and  the  courts  from  recog- 
nizing it,  as  being  of  any  validity  in  respect  to  any  other  article 
insured  by  the  same  party  in  the  same  policy. 

Thus,  where  a  part  of  a  shipment  consisted  of  naval  stores,  the 
exportation  of  which  was  prohibited,  under  penalty  of  the  forfeiture 
of  the  same  and  of  the  ship.  Lord  Ellenborough  said:  "It  had 
been  decided  a  hundred  times,  that,  if  a  party  insure  goods  alto- 
gether in  one  policy,  and  some  of  them  are  of  a  nature  to  make 
the  voyage  illegal,  the  whole  contract  is  illegal  and  void."  ^ 

So,  where  a  part  of  the  goods  belonging  to  a  shipper  were  con- 
traband, Sir  William  Scott  condemned  the  whole  of  his  shipment, 
saying,  "  To  escape  the  contagion  of  contraband,  the  innocent  arti- 
cles must  be  the  property  of  a  different  person."  ^ 

So,  where  the  law  required  that,  on  the  exportation  of  gun- 
powder, a  bond  conditioned  to  export  it  to  the  place  proposed 
should  be  given  by  the  "merchant  exporter,"  and  the  bond  of  the 
manufacturer  was  given  instead  of  that  of  the  exporter.  Lord  Ten- 
terden  and  his  associates  held  a  policy  on  the  powder  and  other 
goods  of  the  same  assured,  to  be  void,  in  respect  to  the  other  goods 
as  well  as  the  powder.^ 

But  there  are  not  wanting  opposite  decisions  on  this  question, 
and  some  of  them  by  the  same  courts  ;  and  in  some  of  the  cases 
in  which  the  operation  of  the  rule  above  laid  down  was  evidently 
so  inequitable,  and  the  penalties  and  forfeitures  incidentally,  and 
in  fact  casually,  thereby  inflicted,  were  so  palpably  out  of  propor- 
tion to  the  offence,  if  there  was  any,  —  for  many  of  the  cases  are 
those  of  mistake  or  oversight,  —  the  judges  have  not  disguised  their 
misgivings  in  applying  the  rule.  The  French  law  allows  the  dis- 
crimination.^ 


J  Parkin  v.  Dick,  11   East,   502;  26.     See  Bynk.  Q.  J.  Pub.,  1.  l,c.  14  ; 

S.  C,  2  Camp,  221.     See  also  Gor-  and  The  Jonge  Tobias,  1  Chr.  Rob.  329. 

don  V.  Vaughan,  12  East,  302.  3  Camelo  v.  Britten,  4  B.  &  A.  184. 

2  The  Staadt  Embden,  1  Chr.  Rob.  4  Marine  Ord.  of  Louis  XIV.,  Ins. 


142  INSURABLE   INTEREST.  [CHAP.  III. 

Divers  decisions  of  the  English  Court  of  Common  Pleas  malce 
a  discrimination  of  the  legal  and  illegal  goods  shipped  by  the 
same  party,  and  insured  in  the  same  policy.  Insurance  being 
made  on  a  cargo,  a  part  of  which  was  liable  to  condemnation  on 
account  of  being  imported  from  the  enemy's  country,  the  importa- 
tion of  the  rest  being  authorized  by  a  license,  the  insurance  was 
considered  valid  in  respect  to  the  goods  covered  by  the  license.^ 
And  in  the  case  of  insurance  on  three  hundred  barrels  of  gunpow- 
der, the  exportation  of  only  half  of  which  was  licensed,  and  the 
law  provided  that  gunpowder  exported  without  license  should  be 
forfeited,  and  also  the  ship  in  which  it  was  exported,  Gibbs,  C,  J., 
said  :  "The  licensed  barrels  were  not  forfeited  ;  then  the  exporta- 
tion of  them  was  legal,  and  the  insurance  thereon  is  <ilso  legal."  ^ 

The  rule  adopted  by  that  court  is  certainly  recommended  by  very 
strong  equitable  considerations,  and  is  not  apparently  attended  by 
any  practical  objections. 

233.  In  case  of  the  capacity  of  the  insurers  to  contract  being 
limited  by  law,  the  excess  of  the  contract  over  the  limit  is  void. 

A  fire  policy  being  made  for  ^3,500,  and  the  policy  itself  show- 
ing that  the  insurance  company  was  authorized  to  insure  only 
^3,000,  it  was  held  to  be  void  for  the  surplus.^ 

234.  Where  an  agent  ships  goods  for  divers  principals,  some 
ofivhom  are  of  opposite  belligerent  countries,  others  neutral,  and 
insures  them  all  in  the  same  policy,  on  account  of  his  principals 
respectively,  who  have  between  themselves  no  partnership  or  joint 
interest,  the  policy  being  made  in  one  of  the  belligerent  countries, 
is  valid  in  respect  to  the  interest  of  the  subjects  of  that  country, 
and  also  that  of  the  neutrals.^ 

In  such  case  it  was  held  that  the  legal  interests  are  not  conta- 
minated by  the  illegal  ;  and  there  does  not  appear  to  be  any  rea- 
son that  the  comprehending  of  all  the  divers  shipments,  in  one 

a.  19  ;  Poth.  Ins.,  n.  44  ;  1  Ducr,  Mar.  2  Marsli.R.  196.   Sec  also  The  Vriend- 

Ins.,  893,  394.  schap,  4  Clir.  Rob.  IGG. 

1  ricsclirll  r.  Allnutt,  4  Ta>mt.  792.  3  Holmes  v.  Charlestown  Mut.  Fire 
See  also  IJutlcr  v.  Allnutt,  1  Stark.  Ins.  Co.  10  IMet.  211. 

222,  a  precisely  similar  case.  *  Hagedora  v.  Bazctte,  2  M.  &  S. 

2  Keir  v.  Andradc,  G  Taunt.  498;     100. 


SECT.  II.]      THE  LEGALITY  OF  THE  INTEREST.  143 

general  valuation  indiscriminately,  should  affect  the  validity  of  the 
contract  as  to  the  lawful  goods,  since  this  is  merely  substituting 
another  value,  proportionately,  for  the  invoice  value. ^  The  inte- 
rests were  stated  in  proportions  of  a  sixteenth,  eighth,  &lc.^ 

235.  In  the  preceding  case  the  interests  in  the  goods  and  those 
in  the  policy  were  entirely  distinct,  having  no  connection  except 
the  transaction  through  the  same  agency,  and  the  insurance  in  the 
same  policy. 

But  ivhere  the  interests  are  joint  and  inseparably  connected,  so 
that  the  loss  or  gain  necessarily  affects  all  the  parties  interested 
in  the  property  and  in  the  policy,  if  the  insurance  of  any  of  the 
parties  is  in  contravention  of  law,  or  the  interest  of  any  party 
is  contaminated  by  such  contravention,  relative  to  the  property 
or  risk,  the  whole  interest  is  contaminated,  and  the  insurance  is 
void.'^ 

236.  The  official  character  of  a  neutral  consul  in  a  belligerent 
country,  does  not  confer  upon  him  any  commercial  privilege.^ 

237.  The  circumstance  that  the  goods  of  a  belligerent  subject, 
destined  to  the  enemy  at  his  risk,  are  to  go  first  to  a  neutral  port, 
will  not  make  the  adventure  lawful. 

During  a  war  between  Great  Britain  and  Holland,  it  was  not 
permitted  to  a  British  merchant  to  send  goods  to  Embden,  then  a 
neutral  port,  with  the  view  of  sending  them  forward,  on  his  own 
account  to  a  Dutch  port.^ 

238.  Where  a  country  is  in  possession  of  the  troops  of  the 
enemy,  but  continues  to  be  under  the  administration  of  its  own 
government,  the  inhabitants  have  been  considered  as  neutrals  in 
some  cases.^  In  general,  however,  "though  acquisitions  made 
during  war  are  not  considered  as  permanent  until  confirmed  by 
treaty,  yet,  to  every  commercial  and  belligerent  purpose,  they  are 

^  S.  C.  understand  his  meaning  to  be  limited 

^  S.  C.  as  in  the  text. 

3  Clark  V.  Protection   Ins.  Co.,  1  ^  Albright  v.  Sussman,  2  Ves.  & 

Story's  R.  109.     The   expression   of  Beam.  323. 

the  doctrine  on  the  subject  by  Mr.  5  The  Jonge  Pieter,  4  Chr.  Rob.  79. 

Justice  Story  in  this  case  is  more  6  Hagedorn  v.  Bell,  1  M.  &  S.  450. 
general  than  that  of  the  text,  but  I 


144  INSURABLE   INTEREST.  [CHAP.  III. 

considered  as  a  part  of  the  domain  of  the  conqueror,  so  long  as 
he  retains  the  possession  and  government  of  them.^ 

In  the  case  of  goods  shipped  for  Messina,  a  friendly  port,  but 
consigned  to  the  subject  of  a  neutral  nation  resident  at  Leghorn,  a 
port  at  that  time  occupied  by  the  enemy,  the  trade  was  ruled  by 
Lord  EUenborough  to  be  lawful,  and  the  insurance  valid.^ 

239.  -4  ship  is  reputed  to  have  the  character  of  the  nation 
tinder  the  flag  and  pass  of  which  she  sails  ;  ^  and  consequently 
is  not  insurable  if  she  sails  under  the  flag  and  pass  of  the  enemy. 
But  the  flag  does  not  determine  the  national  character  of  the 
cargo  ^ 

240.  Where  a  resident  in  one  country  there  insures  his  interest 
in  ships  fitted  out  from  and  hearing  the  flag  and  national  cha- 
racter of  another  in  which  the  other  part-owners  reside,  the 
policy  is  valid  against  detention  by  such  other  country,  prelimi- 
nary to  and  followed  by  hostilities  between  the  two  countries.^ 

But  the  interest  which  a  person  resident  in  a  neutral  country 
has  in  a  house  of  trade  established  in  the  country  of  the  enemy, 
has  been  considered  to  have  the  national  character  of  the  hostile 
country.^ 

24  L  If  property  is  seized  provisionally  in  contemplation  of 
hostilities,  and  war  is  afterwards  declared,  the  declaration  will 
have  a  retroactive  operation  in  respect  to  the  property  so  seized, 
which  ivill  be  liable  to  confiscation  in  the  same  manner  as  if  the 
declaration  had  preceded  the  seizure.'^ 

242.  As  the  personal  disability  of  an  alien  enemy  to  make  con- 
tracts and  bring  actions  may  be  removed,  by  his  privilege  of  hold- 
ing property,  or  by  a  safe-conduct,  or  a  license,  so  a  license  or 
privilege  granted  by  sufficient  authority  will,  in  like  manner, 
make  it  lawful  in  a  subject  to  carry  on  trade  with  the  public 

1  Thirty   Hogsheads    of    Sugar  v.        4  5  Clir.  Rob.  5. 

Boyle,  9  C ranch,  191.  ^  Kotch  v.  Edie,  G  T.  K.  413. 

2  Bromley  v.  Ilesscltinc,  1  Camp.        °  The  Friendschaft,  4  Wheat.  105. 
75.  7  The  Boedes  Lust,  5  Chr.  Rob.  233  ; 

3  The  Vrow  Elizabelli,  4  Clir.  Rob..  The  Ilerstelder,  1  Chr.  Rob.  113  ;  Lu- 
2 ;  The  Vreede  Seholtys,  5  Chr.  Rob.  ccna  v.  Craufurd,  8  T.  R.  13  ;  3  B.  & 
5,  n.  r.  75 ;  5  B.  &.  T.  269. 


SECT.  II.]       THE  LEGALITY  OF  THE  INTEREST.  145 

enemy,  and  any  property  employed,  or  trade  conducted,  within 
the  privilege,  will  not  be  divested  of  any  of  the  rights  which 
usually  belong  to  it,  and  it  may  accordingly  be  insured. 

243.  Whatever  man  or  body  of  men,  in  a  community,  has  the 
power  of  declaring  and  carrying  on  war,  the  same  has,  as  inci- 
dent to  such  power,  the  right  to  qualify  the  declaration,  and 
exempt  any  persons  or  property  from  its  operation. 

This  is  only  continuing  or  restoring  peace,  as  to  some  of  the 
subjects  of  a  foreign  state  or  their  property,  or  as  to  particular  de- 
scriptions of  trade.  There  is  indeed  some  qualification  of  hostili- 
ties, or  something  of  the  character  of  peace,  in  all  wars  between 
civilized  nations,  as  in  the  case  of  cartels,  flags  of  truce,  and  all 
the  cases  that  come  within  the  rules  of  civilized  warfare.  Licenses 
and  privileges  to  individuals,  or  to  specific  property  or  kinds  of  trade, 
are  only  an  extension  of  the  principles  upon  which  such  rules  are 
founded,  with  this  distinction,  that  the  rules  of  warfare  may  be  the 
dictates  of  humanity,  whereas  licenses  and  exemptions,  in  respect 
to  trade,  are  usually  granted  upon  considerations  of  interest. 

244.  To  divest  a  trade  of  its  hostile  character  the  license  under 
which  it  is  conducted  must  be  granted  by  a  surfficient  authority^ 

245.  It  can  be  used  only  by  the  persons  in  whose  favor  it  is 
granted^  and  is  not  transferable  unless  it  appears  to  be  so  on  its 
face  ;^  but  may  run  ^'to  any  person,"  in  which  case  it  may  be 
used  by  an  enemy  subject.'^ 

1  Vanharthals  v.  Halbed,  1  East,  Marianne,  Edw.  Ad.  R.  346  ;  Busk  v. 
487,  n.;  Vandyck  v.  Whitmore,  1  Bell,  16  East,  3  ;  Barlow  r.  M'ln tosh, 
East,  475;  Shiffner  v.  Gordon,  12  12  East,  311;  S.  C,  3  Camp.  160; 
East,  296  ;  Schroeder  v.  Vaux,  15  S.  P.  Robinson  v.  Clieeswright,  1  M. 
East,  52;  The  Hope,  1  Dod.  Ad.  R.  &  S.  220;  Hagedorn  v.  Bazette,  2  M, 
226.  &  S.  100 ;  Waring  v.  Scott,  4  Taunt. 

2  Fayle  v.  Bourdillon,  3  Taunt.  546  ;  605  ;  Vaughan  v.  Leracke,  7  D.  &  R. 
Usparicha  v.  Noble,  13  East,  332;  236  ;  S.  C,  8  Moore,  646, 1  Bing.473; 
Feise  V.  Bell,  4  Taunt.  4  ;  Morgan  v.  Grigg  v.  Scott,  4  Camp.  339,  Holt,  129 ; 
Oswald,  3  Taunt.  554  ;  Kllngender  Robinson  v.  Morris,  5  Taunt.  720 ; 
V.  Bond,  14  East,  484;  Rawlinson  v.  Feise  v.  Newnham,  16  East,  197; 
Janson,  12  East,  223;  The  Beurse  Mennet  v.  Bonham,  15  East,  477; 
Van  Konnigsberg,  2  Chr.  Rob.  169  ;  Hullman  v.  Whitmore,  3  M.  &  S.  337. 
The  Jonge  Johannes,  4  id.  263  ;  The  ^  Pglse  v.  Thompson,  1  Taunt.  121. 
Jonge  Klassina,  5  id.  29  7 ;  The  Cousine  4  The  Louisa  Charlotte,  1  Dod.  Ad. 

VOL.    I.  13 


146 


INSURABLE   INTEREST. 


[chap.  III. 


246.  It  avails  only  for  the  time  specified.^ 

247.  The  trade  must  he  conducted  in  compliance  with  the  terms 
and  conditions,  and  within  the  limits  of  the  license? 

248.  But  a  license  to  a  citizen  to  trade  with  the  enemy,  or  to 
an  enemy  to  trade,  has  been  considered  to  he  a  proper  suhject  for 
a  liberal  construction.^ 

249.-  Stress  of  weather,  or  other  unforseen,  ahsolute  necessity, 
will  excuse  a  deviation  from  the  course  specif  ed  by  the  license  ;"* 
but  compulsion  by  the  enemy  to  take  goods  on  board  cannot  be 
alleged.^ 


R.  308  ;  Mennet  v.  Bonbarn,  15  East, 
477. 

1  Robinson  v.  Touray,  1  M.  &  S. 
217 ;  Feise  v.  AVaters,  2  Taunt.  248 ; 
SIffkin  V.  AUnut,  1  M.  &  S.  39  ;  Free- 
land  V.  Walker,  4  Taunt.  478 ;  Leevin 
V.  Cormac,  4  Taunt.  483  ;  Williams  v. 
Marshall,  1  J.  B.Moore,  168  ;  2  Marsh. 
R.  292 ;  6  Taunt.  390 ;  7  Taunt.  468  ; 
Tullock  V.  Boyd,  1  Moore,  174;  7 
Taunt.  471 ;  The  Goede  Hoop,  Edw. 
Ad.  R.  327  ;  The  Carl,  id.  339  •,  The 
Johan  Pieter,  id.  355;  Groning  v. 
Crockat,  3  Camp.  83 ;  Siflfkin  v.  Glo- 
ver, 4  Taunt.  717. 

2  Le  Cheminant  v.  Pearson,  and 
Same  v.  Allnutt,  4  Taunt.  36  7  ;  Ilage- 
dorn  V.  Rcid,  1  M.  &  S.  56  7,  3  Camp. 
377;  Hullman  v.  Whitmore,  3  M.  & 
S.  337  ;  Anthony  v.  Moline,  5  Taunt. 
711 ;  Rucker  v.  Ansley,  5  M.  &  S.  25 ; 
Evcrth  V.  Tunno,  1  B.  &  A.  142  ;  But- 
ler I'.  Allnutt,  1  Stark.  222 ;  The  Cos- 
mopolite, 4  Chr.  Rob.  8 ;  The  Iloff- 
nung,  2  id.  162;  The  Jongc  Arcnd, 
5  id.  14;  The  JufFrow  Catharina,  5 
id.  141  ;  The  Clio,  6  id.  67  ;  The  Twee 
Gebrocdcrs,  Kdw.  Ad.  R.  95  ;  The 
Byficld,  id.  188 ;  The  Catharina  Maria, 
id.  336  ;  Tl»c  Wolfarth,  id.  365 ;  Tlic 
Europa,  id.  342;  The  Vrow  Cornelia, 
id.  349  ;  The  Jongc  Frederick,  id.  357 ; 


The  Cornelia,  id.  360 ;  The  Henrietta, 
1  Dod.  Ad.  R.  168  ;  The  Hoppett, 
Edw.  Ad.  R.  369 ;  The  Speculation, 
id.  344 ;  The  Twee  Gebroeders,  id.  95  ; 
Gordon  v.  Vaughan,  12  East,  302,  n. ; 
NorviUe  v.  St.  Barbe,  4  B.  &  P.  434. 

3  Defflis  V.  Parry,  3  B.  &  P.  3  ;  Ro- 
binson V.  Touray,  1  M.  &  S.  217; 
Feise  v.  Waters,  2  Taunt.  248 ;  Fayle 
V.  Bourdillon,  3  Taunt.  546  ;  Flindt  v. 
Scott,  and  Same  v.  Crockatt,  5  Taunt. 
6 74  ;  Usparicha  v.  Noble,  13  East,  332 ; 
Feise  v.  Bell,  4  Taunt.  4  ;  Morgan  v. 
Oswald,  3  Taunt.  554 ;  Hagedorn  v. 
Reid,  1  M.  &  S.  567,  3  Camp.  377; 
Kensington  v.  Inglis,  8  East,  273; 
The  Juno,  2  Chr.  Rob.  116  ;  The 
Planter's  Wench,  5  id.  22  ;  The  Goede 
Hoop,  Edw.  Ad.  R.  327;  Hullman  v. 
Whitmore,  3  M.&S.  337.  Mr.  Duer 
remarks  that  the  doctrine  of  liberal 
construction  of  licenses  -was  ado23ted 
in  England  during  the  time  of  Bona- 
parte's continental  system.  1  Marine 
Ins.,  Lcct.  6,  s.  37. 

4  The  Manly,  1  Dod.  Ad.  R.  257  ; 
The  Twee  Gebroeders,  Edw.  Ad.  R. 
95 ;  The  Cornelia,  id.  360 ;  The  Sarah 
Maria,  id.  361 ;  The  Minerva,  id.  375. 

5  The  Seyerstadt,  1  Dod.  Ad.  R. 
241 ;  The  Ostcr  Risocr,  4  Chr.  Rob. 
199. 


SECT.  II.]  THE   LEGALITY   OF   THE   INTEREST.  147 

250.  A  license  ivill  not  operate  retrospectively,  so  as  to  devest 
vested  rights,  as  those  of  captors.^ 

251.  ^  licensed  shipment  is  not  affected  hy  one  unlicensed, 
made  by  a  different  shipper,  on  hoard  of  the  same  vessel.^ 

252.  The  license  being  forfeited,  or  its  terms  not  complied 
with,  insurance  upon  the  trade  with  the  enemy,  or  upon  enemy 
property  licensed,  will  thereupon  he  void. 

253.  As  a  license  from  a  merchant's  own  government  renders 
a  trade  lawful  which  would  otherwise  be  unlawful,  so  a  license  or 
privilege  from  an  enemy,  or  belligerent,  invests  the  licensed  trade 
ivith  the  national  character  of  the  license.^ 

Thus,  in  the  case  of  a  voyage  from  the  United  States  to  Portu- 
gal, with  which  the  United  States  were  at  peace,  Great  Britain 
being  at  the  same  time  at  war  with  the  United  States,  where  the 
ship  had  on  board  a  license  from  a  British  admiral,  for  the  pur- 
pose of  protecting  the  property  from  British  capture,  the  voyage 
was  adjudged  to  be  rendered  illegal  by  the  use  of  the  license ;  ^ 
and  would  have  been  so,  even  though  the  license  had  been  pro- 
cured by  the  agent,  without  the  owner's  knowledge.^  It  was  held 
in  Connecticut,  that  such  a  license,  obtained  through  the  minister 
of  the  neutral  country,  to  whose  territories  the  voyage  was  intended, 
did  not  render  the  voyage  illegal.^  The  Supreme  Court  of  the 
United  States  was,  however,  of  opinion,  that  "the  mere  sailing 
under  an  enemy's  license  constituted  of  itself  an  act  of  illegality."  "^ 
An  agreement  that  a  ship  should  have  one  of  these  licenses  on 
board,  was  held  in  New  York  to  be  illegal  and  void,  and  so  was 
a  policy  warranting  the  ship  to  have  such  a  license.^ 

1  The  St.  Ivan,  Edw.  Ad.  R.  376.  7  The  Ariadne,  2  Wheat.  143.    See 

2  The  Jonge  Clara,  Edw.  Ad.  R.  also  Craig  v.  United  States  Ins.  Co., 
371.  1  Peters's  R.  410. 

3  The  Anna  Catharina,  4  Chr.  Rob.  8  Qgden  v.  Barker,  18  Johns.  87 ; 
118.  Colquhoun  v.  N.  Y .  Firemen's  Ins.  Co., 

^  The  Julia,  8  Cranch,  181.     See  15  Johns.  352.     But  a  policy  on  one 

also  The  Aurora,  8  Cranch.  203.  of  these  licenses,  valued  at  a  certain 

5  The  Hiram,  1  Wheat.  440.  sum,  was  decided  in  Massachusetts  to 

6  Bulkley  v,  Derby  Fishing  Co.,  1  be  a  valid  and  legal  contract.  Per- 
Conn.  R.  571.  kins  v.  N.  E.  Marine  Ins.  Co.,  12  Mass. 


148  INSURABLE   INTEREST.  [CHAP.  III. 

254.  A  cartel  for  exchange  of  prisoners  between  belligerents, 
is,  by  the  modern  usage  of  nations,  put  upon  the  footing  of  a  ves- 
sel licensed  by  the  belligerents  for  that  purpose.^  The  cartel  may- 
be characterized  as  a  messenger  under  a  flag  of  truce. 

255.  The  transfer  of  belligerent  or  enemy  property  while  in 
transitu  at  sea,  to  a  neutral,  for  the  purpose  of  screening  it  from 
capture,  does  not  change  its  national  character ;  ^  nor  does  the 
countermand  of  the  consignment  in  transitu  by  a  belligerent  con- 
signor, where  the  neutral  consignee,  at  whose  risk  it  was  shipped,  is 
solvent.^ 

256.  A  merely  colorable,  pretended  sale,  or  retaining  of  the 
title  to  property  sold,  does  not  prevent  the  subject  from  being  ad- 
judicated upon  according  to  the  real  ownership  of  the  property.* 

257.  A  sale  to  a  neutral  of  a  public  belligerent  vessel,  chased 
into  a  neutral  port,  which  it  could  not  leave  without  being  cap- 
tured, is  void  as  against  the  claim  of  the  cruiser ;  ^  but  it  is  other- 
wise of  a  private  vessel.^ 

258.  A  neutral  whose  property  is  implicated  in  the  commerce 
of  a  belligerent  country,  at  the  breaking  out  of  a  war,  is  allowed 
sufficient  opportunity  to  disentangle  it,  before  it  will  become  im- 
pressed with  the  hostile  character  of  the  country.''' 


R.  214.    And  accordingly  tlie  same        2  The  Vrow  Margaretha,  1    Chr. 

court  held,  that  the  havhig  such  a  Eob.  33 G  ;  The  Carl  Walter,  4  id.  207; 

license  on  board  of  the  ship,  for  the  The  Jan  Frederick,  5  id.  128. 
purpose  ofprotecting  the  cargo  against        3  The  Constantia,  6  Chr.  Hob.  321. 
capture,  did  not  render  the  voyage        4  The  Omnibus,  G  Chr.  Rob.  71 ; 

illegal  or  make  a  policy  on  the  cargo  The  Sechs  Geschwisteru,  4  id.  100 ; 

void.     Parker,  C.  J.,  said:  "Even  if  The  Vrow  Ilermina,  1  id.  1G3;  and 

the  parties  had  incurred  a  penalty  for  Admiralty  Jurisprudence  passim, 
possessing  the  paper,  still  the  voyage         5  The  Minerva,  6  Chr.  Rob.  39G. 
■was  left  untainted,  and  the  insurance         c  Ibid. 

valid."     Ilayward  v.  Blake,  12  Mass.        ^  The  Dree  Gcbrocders,  4  Chr.  Rob. 

R.  17C.     But  this  case  is  inconsistent  232;   The  Adriana,  1  id.  313;  The 

with  the  preceding  ones,  and  with  the  Jacobus  Johannes,  1  id.  14,  which  was 

current  of  jurisprudence  bearing  on  the   case  of  a  neutral   partner  of  a 

the  subject.  house  in  the  belligerent  country  ;  The 

J  The  Daifjie,  3Chr.  Rob.  139;  La  Osprcy,  1  id.  14.     Sec  also  Vattel 

Gloirc,  5  id.  192  ;  Tlic  Mary,  5  id.  200.  and  Azuni. 


SECT.  II.]       THE  LEGALITY  OF  THE  INTEREST.  149 

259.  Property  shipped  at  the  shipper^s  risk  to  an  enemy,  on 
on  agreement  for  sale  to  the  latter  on  delivery  at  the  port  of  des- 
tination, is  undoubtedly  not  insurable  by  the  shipper,  being  ship- 
ped in  pursuance  of  an  illegal  contract. 

260.  Property  shipped  by  a  neutral,  in  like  manner,  to  a  belli- 
gerent, has  been  considered  belligerent  while  in  transitu,^  but  may 
be  legally  insured  in  either  the  country  of  the  shipper  or  that  oj 
the  consignee. 

261.  The  lien  ivhich  a  neutral  ship  has  on  belligerent  goods 
on  board  of  it,  for  freight  or  for  contribution  or  for  jettison,  is  a 
neutral  interest,  and  as  such  is  undoubtedly  legally  insurable,  in 
either  belligerent  country,  being  recognized  by  the  general  law  to 
be  a  valid  claim  as  against  the  captors  of  goods,  of  which  the  neu- 
tral owner  of  the  ship  has  possession.^ 

There  is  a  distinction  between  these  claims  by  neutrals  and 
other  liens,  as  one  for  advances  made  by  a  foreign  agent  of  a  neu- 
tral for  the  purchase  of  goods  on  an  order  of  a  belligerent,  to  whom 
they  are  consigned,  or  that  of  a  neutral  shipper  of  goods  consigned 
to  a  belligerent  consignee,  from  whom  a  general  balance  of  account 
is  due  to  such  shipper.^ 

In  case  of  the  former  claims,  the  neutral  ship-owner  has  ren- 
dered a  service  by  transporting  or  saving  the  property,  of  which 
the  captor  ought  not  to  avail  himself  without  making  compensa- 
tion ;  but  in  the  other  cases  the  lien  is  of  a  different  description, 
and  is  not  recognized  as  valid  against  the  captor. 

1  The  Sally,  3  Clir.  Eob.  300,  n. ;  to  the  doctrine  stated  in  the  text;  in 

The  Yrow  Margaretha,  1  id.  336  ;  The  the  latter  of  which  cases  the  doctrine 

Packet  de  Bilboa,  2  id.  133  ;  The  Jan  is  denounced  by  Spencer,  C.  J.  of  the 

Frederick,  5  id.  128 ;  The  Atlas,  3  id.  Supreme  Court,  in  strong  terms.    See 

299  ;  The  Frances,  Thompson's  Claim,  1  Duer,  Mai'.  Ins.  421,  Lect.  4,  s.  13, 

8  Cranch,  335,  1  Gall.  455,  616 ;  The  and  note  3,  p.  478. 

Ann  Green,  1  Gall.  274 ;  Opinion  of  2  The  Rising  Sun,  2  Chr.  Eob.  104  ; 

Kent,  J.,  in  Ludlow  v.  Bowne,  1  Johns.  The  Marianna,  6  id.  24.     See  also 

1;  1  Kent's  Com.  86,  87,  5th  ed.    A  The  Hoffnung,  6  id.  383,  and  The 

majority  of  the  court  in  Ludlow  v.  Frances,  Irving's   Claim,  8   Cranch, 

Bowne,  ut  supra.    De  Wolf  v.  N.  Y.  418. 

Firemen's   Ins.   Co.,  20  Johns.  214,  3  Xhe  Frances,  Irving's   Claim,  8 

and  S.  C,  2  Cowen,  56,  are  opposed  Cranch,  418. 
13* 


150  INSURABLE   INTEREST.  [CHAP.  III. 

So  the  claim  of  a  neutral  shipper  against  a  belligerent  ship,  for 
contribution  on  account  of  jettison  of  goods,  is  not  recognized  in 
the  prize  courts  as  binding  on  the  captor  of  the  ship,^  for  the  ship- 
per has  not  a  lien  upon  the  ship,  fortified  by  possession  to  enforce 
his  claim,  as  the  ship-owner  has  on  the  cargo  to  enforce  his  ;  though 
the  equitable  ground  for  his  claim  is  precisely  the  same. 

These  liens  and  claims,  whether  of  one  description  or  the  other, 
may  be  legally  insured  in  a  neutral  country,  as  far  as  they  consti- 
tute liens  on  the  property  at  risk,  and  it  does  not  appear  that  they 
may  not  be  so,  in  either  belligerent  country,  care  being  taken  so 
to  describe  the  interest  in  the  policy,  that  the  risk  may  be  fully 
understood  by  the  underwriter.  The  interests  and  liens  are  in  all 
the  cases  equally  neutral,  and  though  one  description  of  liens  or 
claims  uj)on  the  property  is  respected  by  the  prize  courts,  and 
the  other  is  not  recognized,  the  reasons  for  holding  that  insurance 
on  enemy  property  cannot  be  permitted  by  law  do  not  seem  to 
apply  to  a  policy  upon  either. 

Wherever  a  party  has  a  claim,  satisfaction  of  which  depends 
upon  the  safe  arrival  of  property  at  its  destination,  he  has  a  suffi- 
cient insurable  interest  in  its  arrival,  though,  if  no  lien  exists,  he 
has  no  insurable  interest  in  the  property  itself  that  will  be  covered 
by  a  general  insurance  upon  it.  The  contract  of  indemnity  should 
specify  the  interest  upon  which  the  insurance  is  made,  and  the 
event  insured  against ;  that  is,  the  event  whereby  the  party  having 
the  claim  may  be  prevented  from  obtaining  satisfaction. 

Where  the  party  so  interested  has  rightful  possession  of  the  pro- 
perty, his  interest  is  equivalent  to  that  of  a  part-owner,  and  the 
interest  of  a  part-owner  is  respected  in  the  prize  courts,  though 
the  other  part-owners  are  belligerent,  provided  the  whole  property 
has  not  some  belligerent  badge.^ 

262.  The  hcUigercnt  character  of  a  ship  has  been  considered 
not  to  he  at  all  qualijied  by  bottomry  to  a  neutral,  and  the  ship 
so  hypothecated  has  been  condemned  in  the  antagonist  belligerent 


1  The  IIofTnung,  6  Chr.  Rob.  383. 

3  Sec  Barker  v.  lilakcs,  9  East,  283 ;  Visger  v.  Prcscott,  5  Esp.  184. 


SECT.  II.]  THE   LEGALITY   OF   THE   INTEREST.  151 

country  in  the  same  manner  as  if  there  had  been  no  such  hypothe- 
cation.^ 

263.  So,  where  goods  become  enemy  property,  the  lien  of  an 
agent  is  not  distinguishable,  but  the  whole  property  will  be  con- 
sidered as  enemy  property  without  any  exception  of  the  lien.^ 

So  Sir  William  Scott  decreed  of  a  bottomry  bond  held  by  an 
English  subject  on  a  ship  that  became  enemy  property.^ 

264.  The  question  occurs  whether  the  authorized  exercise  of 
the  right  of  stopping  goods  in  transitu  to  a  neutral,  by  a  bellige- 
rent vendor,  restores  their  belligerent  character,  or  those  in  tran- 
situ to  a  belligerent,  by  a  neutral  vendor,  restores  their  neutral 
character  1 

This  question  does  not  appear  to  have  occurred  in  judicial  juris- 
prudence. Judge  Duer'^  is  of  opinion,  that  on  this  right  having 
been  duly  exercised,  before  the  capture  of  the  goods,  they  become 
reinvested  ivith  the  national  character  of  the  consignors.  And 
this  opinion  seems  to  be  just,  and  is  impliedly  sanctioned  by  Sir 
William  Scott.^  Though  the  right  is  merely  a  lien,  yet  when  the 
party  having  a  lien  has  taken  possession  of  the  subject  in  virtue  of 
the  lien,  he  is  entitled  and  liable  to  be  treated  as  proprietor  in 
respect  of  all  other  persons  than  the  cestui  que  trust,  that  is,  the 
consignee  and  his  representatives,  and  he  or  they  can  only  demand 
redelivery  on  payment  of  the  price,  or  an  account  of  the  proceeds 
and  payment  over  of  the  surplus.^  In  case  of  capture  before  the 
countermand  of  the  bill  of  lading,  this  lien  would  be  disregarded, 
as  is  that  of  a  neutral  upon  enemy  ship  or  goods.  But  the  coun- 
termand of  the  bill  of  lading  is  equivalent  to  the  possession  of  a 

1  The  Imina,  3  Chr.  Rob.  167 ;  The  Cranch,  418 ;  Mr.  C.  J.  Marshall  ab- 
Lisette,  6  id.  387  ;  The  Trende  Sostre,  sent,  and  Mr.  J.  Washington  dissent- 
6  id.  390,  n. ;  and  the  same  doctrine     ing. 

is  asserted  by  Mr.  Pinckney,  the  coun-  3  The  Tobago,  5  Chr.  Rob.  218; 

sel,  and  acquiesced  in  by  C.  J.  Mar-  The  Marianna,  6  id.  24. 

shall,  in  The  Mary,  9  Cranch,  132.  ■*  1  Mar.  Ins.  433,  Lect.  4,  s.  30,  31. 

Would  it  not  follow,  e  converso,  that  ^  The  Constantia,  6  Chr.  Rob.  321. 

the  neutral  character  of  a  ship  is  not  ^  See  Supra,  s.  1,  No.  178,  as  to  the 

affected  by  its  hypothecation  to  a  bel-  right  of  stopping  in  transitu,  as  affect- 

ligerent  ?  ing  the  sufficiency  of  the  insurable 

2  The  Frances,  Irving's  Claim,  8  interest. 


152  INSURABLE  INTEREST.  [CHAP.  III. 

pledge.  The  captor  who  should  take  the  goods  after  the  coun- 
termand, ought  to  be  thereby  subrogated  to  the  rights  of  the  con- 
signee. 

265.  Whether  the  owner  of  a  registered  ship  has  a  legal  in- 
surable interest,  without  compliance  ivith  the  provisions  of  the 
registry  act  7 

There  is  a  diversity  in  the  decisions  on  this  question. 

The  provisions  of  the  British  law  of  registry ,i  and  of  that  of  the 
United  States,'^  are  similar,  the  requirement  of  each  being,  that  the 
ownership  of  registered  vessels  shall  be  truly  stated  in  the  register, 
and  that  all  transfers  shall  be  minuted  in  the  documentary  evidence 
of  the  ownership,  so  as  always  to  exhibit  the  true  state  of  the 
ownership  ;  the  objects  of  the  legislature  of  both  countries  being 
to  encourage  domestic  ship-building  and  the  home  commercial 
marine,  by  giving  privileges  to  home-built  and  home-owned  ship- 
ping, and  the  object  of  these  laws  can  be  effected  only  by  such  a 
construction  and  administration  of  them  as  shall  prevent  vessels 
not  home-built  and  home-owned  from  enjoying  the  privileges 
granted  by  the  laws. 

In  pursuance  of  this  policy,  Lord  Kenyon  and  the  other  judges 
of  the  King's  Bench,  in  his  time,  held,  that  no  interest  legal  or 
equitable,  in  registered  vessels,  could  be  recognized  by  the  courts 
of  law,  whether  in  a  case  of  insurance,  or  any  other,  in  favor  of 
the  party  claiming  such  interest,  unless  it  appeared  in  the  docu- 
mentary evidence  of  ownership. 

The  case  before  Lord  Kenyon  was  that  of  a  policy  upon  a  vessel 
registered  in  the  names  of  two  persons,  copartners,  who  afterwards 
took  two  others  into  copartnership,  on  an  agreement  for  a  joint 
interest  in  all  the  property  of  the  firm,  without  making  any  altera- 
tion of  the  register.  The  policy  was  for  whom  it  might  concern, 
and  the  action  was  in  the  names  of  all  four  copartners.^ 

Lord  Chancellor  Eldon,  some  twenty  years  afterwards,  1808, 
adopted  this  doctrine  in  its  full  extent."*    But  he  intimated  a  doubt, 


1  suit.  2G  Geo.  III.  c.  CO,  s.  3.  3  Camden  v.  Anderson,  5  T.  K.  709. 

2  Act  of  Congrcsd,  1792,  c.  1,  s.  M,        -i  Yallop,  Ex  parte,  15  Ves.  60  ; 
and  1797,  c.  CI,  s.  2.  Ilougbton,  Ex  parte,  17  Ves.  253. 


SECT.  II.]  THE   LEGALITY   OF   THE   INTEREST.  153 

whether  the  doctrine  would  apply  to  every  species  of  equitable 
interest,  as  that  of  assignees  in  bankruptcy,  or  that  of  executors 
and  adnninistrators,  where  the  change  of  interest  takes  place  by 
operation  of  law. 

The  doctrine  thus  laid  down  runs  through  the  English  jurispru- 
dence.^ 

In  a  case  of  insurance  in  the  name  of  A,  on  a  ship  registered  in 
the  name  of  A  and  B,  on  the  oath  of  A  to  their  ownership,  Mr. 
Justice  Story  held  that  the  assured  could  not  be  permitted  to  show 
that  the  ship's  papers  were  false,  and  the  ownership  was  entirely 
in  himself.^ 

In  some  of  the  State  courts  it  has  been  held,  that  an  interest  in 
a  registered  ship,  as  well  as  in  any  other  chattel,  may  be  trans- 
ferred by  a  sale  and  delivery  without  writing ;  as  in  the  Supreme 
Court  of  New  York,^  and  in  the  Superior  Court  of  the  city  of  New 
York.*  And  in  a  case  before  the  Supreme  Court  of  Massachu- 
setts, a  partnership  consisting  of  three  partners  was  permitted  to 
prove  its  ownership  of  half  of  a  vessel,  registered  in  the  name  of 
one  of  them,  who  was  credited  with  such  half  in  the  books  of  the 
firm,  and  that  of  a  third  person.  It  was  remarked  that  the  regis- 
ter was  only  prima  facie  evidence  of  the  ownership.^ 

So  it  was  held  that  an  owner  could  not  avail  himself  of  the 
omission  of  his  name  in  the  register  to  avoid  a  claim  for  supplies.^ 

The  Supreme  Court  of  the  United  States  held,  that  the  omis- 
sion to  surrender  the  old  register,  as  required  by  the  act  of  Con- 

1  Evertli  V.  Blackburne,  2  Stark.  3  "\Yendover  v.  Hogeboom,  7  Johns . 

66 ;  Marsh  v.  Robinson,  4  Esp.  98 ;  R,  308. 

Campbell  v.  Stein,  G  Dow,  P.  C.  116  ;  4  Ring  v.  Franklin  Ins.  Co.,  2  Hall's 

RoUeston  v.  Hibbert,  3  T.  R.  406,  and  R.  1, 

4  East,  114;  The  Sisters,  5  Chr.  Rob.  5  Bixby  v.  Franklin  Ins.  Co.,  8  Pick. 
138  ;  1  id.  155,  438.  A  mere  clerical  86.  See  also,  to  the  same  effect.  La- 
mistake  in  such  documentary  evidence  zarus  v.  Commonwealth  Ins.  Co.,  5 
is  held  not  to  vitiate  the  title.  RoUes-  Pick.  86  ;  Hatch  v.  Smith,  5  Mass.  R. 
ton  V.  Smith,  4  T.  R.  161.  53 ;  Pratt  y.  Phoenix  Ins.  Co.,  1  Browne, 

•2  Ohl  V.  Eagle  Ins.  Co.,  4  Mason,  Penn.  267;  Badger  v.  Bank  of  Cum- 

172.     And  see  Jacobsen's  Sea  Laws,  berland,  26  Maine  R.  428. 

B.  1,  c.  22;  Duncanson  v.  M'Clure,  6  viual  v.  Burrill,  16  Pick.  401. 
4  Dall.  308. 


154  INSURABLE  INTEREST.  [CHAP.  III. 

gressji  did  not  defeat  the  joolicy  upon  the  vessel  constructed  upon 
its  keel,  floor  timbers,  and  naval  timbers,  and  enrolled  under  a  dif- 
ferent name.- 

On  the  whole,  for  the  reasons  given  in  the  above  cases,  particu- 
larly those  given  by  the  Supreme  Court  of  the  United  States,  the 
better  doctrine  seems  to  be,  that,  in  the  United  States,  in  the  ab- 
sence of  fraud,  and  of  intent  to  use  the  ship  illegally,  the  owner 
of  a  registered  ship  has  a  legal  insurable  interest  in  it,  though 
the  ownership  is  not  accurately  stated  in  the  register. 

266.  The  ship-owner  is  not  subject  to  have  the  registry  laws 
of  his  own  country  alleged  against  him  in  the  courts  of  a  foreign 
country,  to  defeat  his  insurance  on  a  vessel  on  the  ground  of  ille- 
gality.^ 

267.  Where  the  law  requires  vessels  to  talce  a  pilot,  or  forfeit 
half  of  the  pilotage,  the  not  talcing  of  one  is  not  such  an  illegal- 
ity as  to  avoid  the  insurance.'^ 

The  forfeiture  in  such  case  is  rather  a  contribution  towards  the 
expense  of  maintaining  a  system  of  pilotage,  than  a  punishment 
for  a  misdemeanor.  Besides,  the  delinquency,  if  it  be  one,  is  re- 
mote and  incidental,  and  distinct  from  the  interest  in  the  vessel 
and  the  risk. 

268.  It  is  a  general  doctrine,  that  property  held  or  used,  or 
contracts  made  in  contravention  of  the  commercial  regulations  of 
a  foreign  state,  do  not  vitiate  a  right  or  title. 

It  is  said  that  one  state  does  not  take  notice  of  the  revenue 
laws,  or  commercial  regulations,  or  municipal  laws  of  another. 
The  doctrine  is  probably  derived  from  the  notion,  and  to  some  ex- 
tent, the  fact,  that  the  commercial  regulations  of  different  states, 
though  at  peace,  originate  in  competition  and  rivalry. 

Again,  some  countries,  Spain  and  Portugal  particularly,  have 
imposed  many  commercial  restrictions,  which  their  own  subjects 
are  in  the  hal)it  of  violating,  and  it  would  be  excessive  severity  in 


1  Act  of  1  792,  c.  45,  s.  14.  ^  Flanigan  v.  Washington  Ins.  Co., 

^  Ocean  In.s.  Co.  t'.  PoUcys,  13  Pe-  7  Pcnn.  R.  307.     And  sec  Keelcr  v. 

ters's  S.  Ct.  K.  1.^7.  Firemen's  Ins.  Co.,  3  Hill,  250. 
3  Ilhind  V.  Wilkinson,  2  Taunt.  237. 


SECT.  II.]  THE   LEGALITY   OF   THE  INTEREST.  155 

a  government  to  require  of  its  subjects  an  exact  observance  of  the 
laws  of  any  such  foreign  country,  which  are  disregarded  by  the 
people  of  that  country  themselves. 

In  pursuance  of  this  doctrine,  a  legal  insurable  interest  in  goods 
exported  to  a  foreign  country,  in  contravention  of  its  laws,  is  recog- 
nized by  the  courts  of  the  country  from  which  they  are  exported.^ 

269.  The  mere  knoivledge  hij  the  foreign  vendor  of  goods, 
that  the  purchaser  intends  to  employ  them  at  home  in  contraven- 
tion of  the  laws  of  trade,  will  not  render  the  contract  void,  or 
prevent  the  vendor  from  recovering  the  price  against  the  purchaser, 
in  the  courts  of  the  country  of  the  latter,  provided  he  lends  no  aid 
to  such  contravention. 

As  where  the  goods  are  intended  by  the  purchaser  to  be  smug- 
gled.2 

But  if  the  purchaser,  as  part  of  the  contract,  or  transaction, 
does  any  act  auxiliary  to  such  contravention  of  law,  he  cannot  set 
up  his  contract  in  the  foreign  country. 

Goods  were  exported  from  England,  in  the  ship  Croydon,  on 
the  master's  giving  a  bond,  required  by  law,  to  employ  them  in 
trade  on  the  coast  of  Africa.  It  had  been  agreed  at  Liverpool 
between  the  Croydon  and  the  American  ship  Washington,  that, 
on  their  arriving  on  the  coast  of  Africa,  the  goods  should  be  deli- 
vered on  board  of  the  latter.  They  were  so  delivered,  and  there 
employed  in  trade.  It  was  held  that  a  policy  made  in  England 
on  the  Washington,  at  and  from  the  coast  of  Africa,  was  void,  on 
the  ground  that,  in  pursuance  of  a  contract  made  in  England,  she 
was  employed,  in  cooperation  with  the  Croydon,  in  contravention 
of  the  British  law,  and  Gibbs,  C.  J.,  is  reported  to  have  said ;  "If 
a  foreigner,  resident  in  a  foreign  country,  aids  to  pack  the  goods 
for  smuggling,  he  cannot  recover  the  price  of  them  here."  ^ 

270.  The  law  of  nations  makes  it  the  duty  of  a  nation,  pro- 
fessing to  be  neutral,  to  abstain  from  assisting  either  belligerent 


1  Gardiner  v.  Smith,  1  Johns.  Cas.  3  Gibson  v.  Service,  5  Taunt.  433 ; 
141.  Jurisprudence  abounds  with  au-  S.  C,  1  Marsh.  R.  119;  and  see  Gib- 
thorities  to  the  same  effect.  son  v.  Mair,  1  Marsh.  K.  39. 

2  Holman  v.  Johnson,  Cowp.  341. 


156  INSURABLE  INTEREST.  [CUAP.  III. 

to  carry  on  a  ivar,  by  furnishing  soldiers,  ships  of  war,  arms,  or 
warlike  stores.^ 

271.  Either  helligerent  has  a  right  to  capture  and  confiscate 
all  arms,  ivarlike  equipments,  and  military  supplies,  sent  by  a 
neutral  to  the  other.  Such  trade  is  denominated  contraband  of 
war. 

In  determining  what  particular  articles  of  merchandise  are  con- 
traband of  war,  Mr.  Marshall  says,^  "much  depends  on  the  power 
of  the  party,  whether  belligerent  or  neutral,"  who  is  deciding  the 
question.  A  belligerent,  possessing  a  powerful  naval  force,  has 
an  interest  in  making  the  list  of  contraband  articles  numerous. 
"  Ship-timber,  going  to  a  port  of  naval  equipment,"  ^  pitch  and 
tar,^  sail-cloth,^  hemp  fit  to  be  used  in  equipping  sjiips,^  sheathing- 
copper,'''  a  ship,  intended  to  be  sold  for  the  purpose  of  being  used 
as  a  privateer,^  and  also  provisions  of  a  kind  commonly  used  as 
sea-stores,  destined  to  a  port  of  naval  equipment,^  have  been  ad- 
judged by  Sir  William  Scott  to  be  contraband  of  war.''^ 

272.  VatteP^  says,  ih^i  provisions  may  be  contraband  of  war, 
if  destined  to  a  place  which  one  of  the  contending  parties  is 
attempting  to  reduce  by  famine.  The  writers  on  the  continent  of 
Europe  generally  maintain  that  provisions  are  not  contraband  of 
war,  unless  destined  to  a  place  beseiged  or  blockaded.^^ 

In  respect  to  this  article,  and  also  cloth,  hemp,  saddles,  harnesses, 
and  other  articles  used  for  ordinary  purposes  of  necessity,  con- 
venience, or  luxury,  as  well  as  in  military  and  naval  equipments, 
their  character,  as  contraband  of  ivar  or  not,  depends  upon  the 

1  6  Mass.  E.  114 ;  1  Maccabees,  c.  8,  6  xhe  Gute  Gesellschaft  Michael, 
V.  2G ;  Grot  lib.  3,  c.  1,  s.  5 ;  Vattel,    4  Chr.  Rob.  94. 

lib.  3,  c.  7,  n.  103,  104.     See  also  ^  The  Charlotte,  5  Chr.  Hob.  275. 

Robinson's  Col.  Mar.  p.  54,  03, 123,  ^  The  Richmond,  5  Chr.  Rob.  325 ; 

184.  The  Brutus,  5  Chr.  Rob.  331,  n.,  and 

2  2d  cd.  p.  78.  App.  No.  I. 

3  The  Eiulraught,  1  Chr.  Rob.  19.  «  The  Jonge  Margarctha,  1  Chr. 

4  Tlie  Sarah  Christina,  1  Chr.  Rob.  Rob.  189 ;  The  Ranger,  G  id.  125. 
237  ;  'J'lic  Twee  JiiHroweii,  4  id.  242  ;  lO  Sec  1  Duer,  Mar.  Ins.  G23  -  644, 
The  Jiichmoml,  5  id.  325.  Leot.  7,  s.  1-19. 

5  The  Ncptunus,  Knyp.  2  Chr.  Rob.  n  Lib.  3,  c.  7,  s.  112. 

110.  12  2  Val.  2G4,  tit.  Dcs  Prises,  a.  11. 


SECT.  II.]       THE  LEGALITY  OF  THE  INTEREST.  157 

place  to  which  they  arc  destined.  If  they  are  are  going  to  a  bel- 
ligerent port,  where  articles  of  the  same  kind  are  used  for  warlike 
purposes,  they  may  be  contraband  of  war. ^ 

Provisions  intended  for  naval  supplies  transported  from  one  port 
of  a  belligerent  to  another,  the  latter  being  a  port  of  naval  equip- 
ment,- or  from  one  neutral  country  to  another,  to  supply  the  fleet 
of  one  of  the  belligerents  lying  in  the  port  of  destination,'^  are  well 
settled  to  be  contraband.* 

273.  The  well-established  doctrine  is,  that  supplies  adapted, 
and  evidently  intended,  to  be  applied  at  the  belligerent  port  of 
destination,  for  warlike  use  in  the  land  or  naval  service,  are  con- 
traband of  war. ^ 

The  principle  universally  acknowledged  respecting  the  necessity 
of  notice  to  neutrals  of  a  blockade,  shows  that  a  neutral  cannot 
legally  be  made  subject  to  surprise  as  to  what  is  contraband  of 
war.  No  article  can  be  so,  unless  notice  and  knowledge  can  be 
imputed  to  the  neutral,  that  it  is  directly  applicable,  and  proba- 
bly to  be  directly  applied,  to  purposes  of  military  or  naval  warfare, 
at  the  port  of  destination.  In  determining  in  each  case  what  arti- 
cles are  so  applicable,  and  what  is  reasonable  notice  that  they  will 
be  so  applied,  the  tribunal  having  jurisdiction  needs  to  be  sternly 
guarded  against  the  national  predilections,  which  are,  in  many 
respects,  not  only  excusable,  but  laudable. 

274.  Neutral  goods,  documented  as  such,  with  neutral  insignia, 
on  board  of  a  merchant-vessel  of  one  belligerent,  are  not  legally 
subject  to  capture  by  the  other  belligerent.^^  But  goods  on  board 
of  a  vessel  of  a  belligerent  nation  are  presumed  to  have  its  national 
character,  unless  they  are  otherwise  documented.'' 


1  The   Jonge  Margaretha,  1    Chr.  3  The  Commercen,!  WheatR.  382 ; 
Rob.  189  ;  The  Frau  Margaretha,  6  S.  C,  2  Gall.  R.  264. 

id.  92  ;   The  Zelder  Rust,  6  id.  93 ;  4  See  also  Maisonaire  v.  Keating,  2 

The  Haabat,  2  id.  174  ;  The  Ranger,  Gall.  325. 

6  id.  125;   The  Edward,  4  id.   68;  5  Maisonaire  r.  Keating,  2  Gall.  325. 

Maisonaire    v.    Keating,    2    Gall.   R.  6  The  Catharina  Elizabeth,  5  Chr. 

325.  Rob.  232. 

2  The  Edward,  4  Chr.  Rob.  68.  i  The  London  Packet,  1  Mason,  14. 

VOL.    I.  14 


158  INSURABLE   INTEREST.  [CHAP.  III. 

275.  Neutral  goods  documented  ivith  a  belligerent  character, 
are  subject  to  be  treated  as  belligerent  property.^ 

276.  Every  Jcind  of  property  belonging  to  the  subject  of  a  neutral 
state,  destined  to  a  bloclcaded  port,  or  besieged  town,  is  contraband 
of  war." 

211.  Where  a  neutral  is  concerned  in  the  trade  of  one  bellige- 
rent, that  is  in  its  nature  invested  with  a  national  character,  his 
property  so  employed  is,  as  already  stated,  subject  to  be  dealt  with 
by  the  other  belligerent  as  enemy  property. 

As  in  the  case  of  the  interest  of  a  neutral  in  a  house  established 
in  one  of  the  belligerent  countries,  and  trade  under  a  special  privi- 
lege granted  by  a  belligerent.^ 

278.  This  general  doctrine  gives  rise  to  the  much  vexed  ques- 
tion. Whether  the  trade  between  a  belligerent  and  its  colonies,  from 
which  other  nations  had  been  excluded  before  a  war,  and  were 
only  admitted  to  it  during  the  war  on  account  of  the  exposure  of 
the  belligerent's  own  vessels  and  property  to  capture  by  the  other 
belligerent,  is  subject  to  be  treated  by  the  other  belligerent  as  a 
privileged  trade  of  the  enemy,  and  to  capture  and  condemnation 
as  such  ? 

In  the  wars  growing  out  of  the  French  revolution  of  1789,  and 
during  the  reign  of  Napoleon,  the  trade  between  France  and  its 
colonies  was  thrown  open  to  neutrals,  not  to  those  of  any  parti- 
cular nation,  under  a  special  privilege,  but  generally.  American 
merchants  went  into  this  trade,  and  their  property,  the  produce  of 
the  French  colonies,  was  captured  and  condemned  by  the  English, 
in  great  amounts.  Tiie  American  government  strongly  protested 
against  the  doctrine  upon  which  these  condemnations  proceeded, 
and  still  more  decidedly,  and  with  good  reason,  against  a  new 
modification  of  the  doctrines  of  national  law,  as  this  was,  being 
sprung  ui)on  the  American  merchants  without  a  formal,  explicit 
notice,  though  it  was  under  novel  circumstances  ;  and  the  dissatis- 


1  The  rrincossa,  2  Chr.  Rob.  49. 

2  2  Val.  201,  tit.  Dcs  Prises,  a.  11 ;  llobiuson's  Col.  Mar.  158. 

3  Supra,  No.  253. 


SECT,  il]  the  legality  of  the  interest.  159 

faction  with  those  decisions  was  no  douht  one  among  the  causes 
of  the  war  between  the  United  States  and  England  in  1812. 

This  question  is  elaborately  examined  by  Judge  Duer.^ 

That  such  a  trade,  opened  to  all  nexiiral  nations  indiscriminately, 
is  not  to  be  treated  as  contraband  by  the  other  belligerent  without 
previous  official  notice  from  such  other  belligerent,  results  palpably 
from  the  doctrines  above  stated  and  not  disputed. 

Sir  William  Scott  acknowledged  as  much,  for  he  alleged  de- 
crees  of  his  own  as  a  sufficient  notice.  But  this  has  been  consi- 
dered, in  this  country  at  least,  to  be  an  extreme  assumption  of 
belligerent  privilege. 

It  is  not  easy  to  lay  down  any  general  rule  whereby  to  discri- 
minate the  circumstances  under  which  such  a  trade  can  justifiably 
be  treated  by  a  belligerent  as  privileged  by  the  enemy. 

279.  The  contraband  character  attaches  to  goods  at  the  com- 
mencement of  the  voyage.^ 

280.  A  contraband  character  does  not  attach  to  goods  or  funds 
intended  for  the  purchase  of  contraband  goods,  nor  to  the  proceeds 
of  the  contraband  articles. 

281.  The  vessel,  and  the  property  of  the  oivners  on  board,  are 
liable  to  forfeiture  for  contraband  trade  during  the  passage  on 
which  such  trading  is  attempted  or  done,  and  until  arrival  to  the 
next  subsequent  port  of  delivery  or  loading  after  that  of  its  then 
destination. 

The  admiralty  decisions  usually  state  the  liability  to  continue  at 
least  to  the  end  of  the  same  or  subsequent  "voyage"  or  adven- 
ture; but  since  this  may  include  divers  passages,  and  be  prolonged 
almost  indefinitely,  I  venture  to  state  the  doctrine  in  the  above 

1  1  Mar.  Ins.  699-725,  Lect.  8,  s.  1  121  ;  The  Welvaart,  1  id.  122  ;  The 

- 10.    Sec  The  Immanuel,  2  Chr.  Rob.  Wilhehnina,  4  id.  App.  4 ;  The  Miner- 

186  ;  The  Convenientia,  4  id.  201 ;  va,  3  id.  232  ;  The  Thorny ris,  Edw. 

The  Essex,  5  id.  369;  The  Johanna  Ad.  R.  17;  Wait's  American  State 

Tholen,  6  Id.  72 ;  The  Jonge  Thomas,  Papers,  1806,  and  subsequently  ;  Be- 

3  id.  233;  The  Polly,  2  Id.  361 ;  The  reus  v.  Rucker,  1  Bl.  313  ;  Vasse  v. 

Provldentia,  2  id.  142;  The  Rebecca,  Ball,  2  Dall.  270. 

2  Id.  101 ;  The  Phoenix,  5  id.  20 ;  The  2  The  Imina,  3  Chr.  Rob.  167. 
Rose,  2  id.  206 ;  The  Rendsborg,  4  id. 


160 


INSURABLE   INTEREST. 


[CIIAP.  III. 


form  as  being  more  definite,  and  as  answering  better  to  the  (^rounds 
alleged  by  the  admiralty  tribunals  in  determining  the  period  dur- 
ing which  the  liability  to  seizure  or  capture  continues.^ 

282.    Trade  by  a  neutral  in  articles  contraband  of  war  exposes 
the  property  involved  in  it  to  capture  and  condemnation  by  a  belli- 


1  See  The  Christianberg,  6  Chr.  Rob. 
376  ;  The  Randers  Bye,  3  id.  382,  n ; 
The  Nancy,  the  Widow  Black  &  Co., 
claimants,  3  id.  122 ;  The  Rosalie  and 
Betty,  2  id.  343  ;  The  Rosalia  and 
Elizabeth,  4  id.,  note  to  table  of  cases  ; 
Parkman  v.  Allen,  1  Stair's  Dec.  29 ; 
S.  C,  G  Chr.  Rob.  382;  The  Marga- 
rette,  1  Acton  Ap.  Cas.  333  ;  The  Jo- 
seph, 8  Cranch,  451,  1  Gall.  545  ;  Car- 
rington  v.  The  Merchants'  Ins.  Co.,  8 
Peters's  S.  C.  R.  495  ;  Kent's  Com., 
5th  ed.  151,  n.,  1  Duer,  Mar.  Ins.  627, 
Lect.  7,  s.  8,  n.  Mr.  Wheaton  is  of 
opinion  that  the  liability  ought  to 
cease  on  the  termination  of  the  pend- 
ing passage.  Digest  of  Law  of  Cap- 
ture, p.  183,  and  International  Law, 
Vol.  ILp.  219. 

Some  of  the  earlier  of  the  above 
cases  do  not  go  to  the  extent  of  the 
doctrines  stated  in  the  text.  In  the 
later  decisions  of  Sir  William  Scott, 
the  period  of  the  liability  of  a  neutral 
vessel  to  capture,  on  account  of  un- 
neutral trading  or  conduct  in  a  pass- 
age in  the  course  of  an  East  India 
voyage,  comprehending  divers  pass- 
ages and  ports  of  loading  and  dis- 
chargf,  is  very  much  prolonged.  The 
principle  on  which  the  limitation  of 
the  right  of  subsequent  capture  is  put, 
is,  that  the  forfeiture  is  not  cancelled 
until  (he  belligerent  may  have  had 
an  o[)portuuity  to  enforce  his  right. 
To  the  objection  that  "if  the  penalty 


is  applied  to  the  subsequent  voyage, 
it  may  travel  on  with  the  vessel  for- 
ever," Sir  William  Scott  remarked, 
in  1807,  "In  principle,  perhaps.  It 
might  not  unjustly  be  pursued  fur- 
ther than  the  immediate  voyage,  but  it 
had  not  been  carried  further  than  the 
voyage  succeeding."  The  right  to 
enforce  the  penalty  at  any  subsequent 
period,  after  sundry  subsequent  voy- 
ages, and  sales  of  the  subject,  and 
treaties  of  peace,  is  thus  disclaimed 
for  Great  Britain,  so  far  as  the  author- 
ity of  its  admiralty  courts  goes,  but 
since  it  is  left  in  the  discretion  of  the 
courts  to  determine  how  many  suc- 
cessive passages  and  changes  of  cargo 
are  to  be  included  in  the  two  voy- 
ages, the  limitation  of  the  period 
within  which  the  forfeiture  may  be 
exacted,  remains  C[uite  Indefinite,  and 
presents  a  proper  subject  for  inter- 
national legislation  by  treaty. 

In  the  above  cited  case  of  The 
Joseph,  the  Supreme  Court  of  the 
United  States  condemned  an  Ameri- 
can ship  which,  after  notice  of  the 
■war  of  1812,  with  England,  took  a 
cargo  at  St.  Petersburg  for  England 
under  a  British  license,  and  was  cap- 
tured on  the  passage  thence  in  ballast 
to  the  United  States,  the  defence  be- 
ing a  necessity  to  take  freight  under 
the  license,  in  order  to  raise  funds  to 
pay  the  expense  of  repairs  at  St.  Pe- 
tersburcr. 


SECT.  II,]       TUE  LEGALITY  OF  TUB  INTEREST.  161 

gereni,  hut  it  is  not  a  violation  of  the  duty  which  he  owes  to  the 
law  of  his  own  country.^ 

Chief  Justice  Parsons  says;  "We  know  of  no  case  where  a 
neutral  merchant  has  been  punished  by  his  own  sovereign  for  his 
contraband  shipments."-  He  says  there  is  no  distinction  in  this 
respect  between  an  interloping  trade,  and  a  trade  in  articles  con- 
traband of  war,  and  the  same  opinion  seems  to  be  entertained  in 
New  York  ;  ^  and  it  is  universally  held  to  be  no  violation  of  the 
laws  of  one  country  for  its  subjects  to  carry  on  an  interloping  trade 
in  another.  It  is  said,  that  this  right  of  the  neutral  to  evade  a 
blockade,  and  to  trade  in  articles  contraband  of  war,  is  similar  to 
his  right  to  transport  the  goods  of  a  belligerent,  which  the  other 
belligerent  may  seize,  and  he  may  detain  and  carry  the  neutral 
vessel  into  port  for  the  purpose  of  making  a  seizure  of  the  goods. 
That  is  to  say,  either  trade  may  be  prosecuted  by  a  neutral,  and 
it  is  no  violation  of  the  laws  of  his  own  country  or  that  of  nations. 
He  merely  incurs  the  peril  of  forfeiting  the  goods  in  case  of  their 
being  seized  by  a  belligerent  in  one  case,  or  the  government  whose 
laws  he  violates  in  the  other."*  Such  trade  is  accordingly  a  legal 
subject  for  insurance. 

283.  Fitting  out  a  privateer  by  neutrals  in  a  neutral  port,  to 
cruise  under  a  flag  of  one  belligerent  against  the  other,  is  illegal, 
and  accordingly  a  contract  made  in  pursuance  and  as  a  part  of 
such  enterprise  is  void.^ 

284.  The  trading  in  articles  contraband,  of  war  has,  in  some 
instances,  been  imnished,  by  Sir  William  Scott,  as  an  offence 
against  the  law  of  nations,  by  condemning,  not  only  the  specific 
goods,  but  also  other  goods  belonging  to  the  same  shipper,  and 
the  ship  in  which  the  goods  were  carried,^  or  by  refusing  to  allow 

1  Depeyster  v.  Gardner,  1  Caines,        5  Pond  v.  Smith,  4  Conn.  R.  217. 
492.  6  The  Staadt  Embden,  1  Chr,  Eob. 

2  G  Mass.  R.  113.  *  26,  and  note ;  The  Jonge  Tobias,  1  id. 

3  Seton  V.  Low,  1  Johns.  Cas.  1;  329;  The  Sarah  Christina,  1  id.  237; 
Skidmore  i'.  Desdoity,  2  id.  77;  Ju-  The  Ringende  Jacob,  1  id.  89;  The 
hel  V.  Rhinclander,  2  id.  120  and  487,  Edward,  4  id.  68 ;  The  Ranger,  6  id. 

4  See  The  Santissima  Ti-inidad,  7  125. 
Wheat.  283. 

14* 


162  INSURABLE   INTEREST.  [CHAP.  III. 

freight, 1  in  cases  wliich  he  considered  as  attended  with  circum- 
stances of  great  aggravation.  This  was,  however,  to  say  the  least, 
a  strong  construction  of  international  law  in  favor  of  the  bellige- 
rent, and  assuming  a  large  latitude  of  discretionary  jurisdiction, 
and  privilege  of  animadversion  and  right  of  inflicting  mulcts,  in 
respect  of  neutrals. 

285.  Resistance  by  a  neutral  to  search  rightfully  demanded  and 
made  by  a  belligerent,  subjects  jiroperty  to  confiscation,  since  such 
resistance  is  an  infraction  of  an  international  law,  the  observance 
of  which  is  essential  to  the  maintenance  of  maritime  police.^ 


SECTION     III.         INTEREST     OF     THE     OWNER     OF     PROPERTY    MORT- 
GAGED,   PLEDGED,    OR    SUBJECT    TO    A    LIEN. 

286.  The  owner  of  property  mortgaged,  pledged,  or  subject  to 
a  lien,  still  retains  an  insurable  interest  in  it  to  the  full  value? 

The  assignment  of  a  bill  of  lading  passes  the  entire  and  abso- 
lute property  in  the  goods  to  the  assignee,  where  this  is  the  inten- 
tion of  the  party  making  the  assignment;"*  but  if  the  bill  of  lading 
is  assigned  merely  for  the  purpose  of  binding  a  consignment  of  the 
goods,  and  designating  the  person  to  whom  the  proceeds  are  to  be 
paid  over,  such  person  being  a  creditor  of  the  consignor,  the  con- 
signor still  retains  an  insurable  interest,  since  he  continues  to  be 
as  directly  interested  in  the  safety  of  the  goods,  as  before  assigning 
the  bill  of  lading.^ 

A  quantity  of  fish  being  shipped  by  Locke,  upon  which  Bar- 
nard had  advanced  money,  and  to  secure  payment  had  taken  a  bill 


1  The  Mercurius,  1  Chr.  Rob.  288.  Ins.  Co.,  10  Pick.  40  ;  Smith  v.  Las- 

2  The  Dispatch,  3  Chr.  Rob.  278  ;  ccllcs,  2  T.  R.  187 ;  Higginson  v.  Dall, 
The  Graaf  Bernstoff,  3  id.  109.  13  Mass.  R.  96.     See  also  AUston  v. 

3  Traders'  Ins.  Co.  v.  Robert,  9  Cainpbolf,  4  Brown's  Pari.  Cas.  476  ; 
Wend,  4  74;  Carpenter  v.  Washing-  Williams's  Adm.  r.  Cincinnati  Ins.  Co., 
ton  Ins.  Co.  of  Providence,  1 6  Petcrs's  Wright,  (Ohio,)  542. 

S.  Ct.R.  4  95,  4  Howard's  Sup.  Ct.  R.  4  M' Andrew   v.   Bell,   1   Esp.  373, 

185;  Stetson  v.  Mass.  Mut.  Fire  Ins.  Ilolt,  572. 

Co.,  4  Mass.  R.  330 ;  Strong  v.  Manuf.  5  Hibbert  v.  Carter,  1  T.  R.  745. 


SECT.  IV.]   INTEREST  OF  A  MORTGAGEE  OR  TRUSTEE. 


1G3 


of  lading,  and  made  out  the  invoice,  in  his  own  name ;  it  was  held 
that  Locke  still  had  an  insurable  interest  in  the  full  value.* 

287.  In  case  of  a  debtor's  assigning  property  to  be  disposed  of, 
and  the  proceeds  applied  to  the  payment  of  his  debts,  he  still  has 
an  insurable  interest  in  the  property  to  its  full  value,  so  long  as 
his  debts,  to  discharge  which  the  property  is  assigned,  remain  in 
force  against  him,  and  unsatisfied  and  unreleased,  or  there  is  a 
surplus  to  accrue  to  him.^ 

A  steamboat  insured  in  the  name  of  the  owner,  the  loss  to  be 
payable  to  the  agents  by  whom  the  policy  was  procured,  was 
assigned  by  the  owner  among  his  other  effects  for  the  benefit  of 
his  creditors,  with  a  resulting  trust  for  his  own  benefit  after  the 
creditors  should  be  fully  paid,  the  creditors  at  the  same  time  giv- 
ing an  absolute  release  and  discharge  of  their  demands  ;  and,  after 
the  assignment,  the  steamboat  was  lost.  It  appearing  that  the 
property  assigned  was  sufficient  to  pay  the  creditors  and  leave  a 
surplus  equal  to  the  value  of  the  steamboat,  it  was  held  that  the 
assured  still  had  an  insurable  interest  in  her  to  her  full  value,  equi- 
valent to  that  of  a  mortgager  or  cestui  que  trust.^ 

SECTION    IV.        INTEREST    OF    A    MORTGAGEE,    TRUSTEE,    OR    IN    VIR- 
TUE   OF    A    LIEN. 

238.  A  trustee  has,  as  such,  an  insurable  interest  in  the  trust 
property  to  its  full  valued 

289.  A  mortgagee  has  an  insurable  interest  in  the  mortgaged 
property^  to  the  amount  of  his  claim. 

A  person  to  whom  the  freight  of  a  vessel  has  been  mortgaged, 
may  insure  the  legal  interest  on  his  own  account,  and  also  the 
equitable  interest  on  account  of  the  mortgager.^ 

1  Locke  V.  The  North  American  5  Traders'  Ins.  Co.  v.  Robert,  9 
Ins.  Co.,  13  Mass.  R.  61.  •  Wend.  404  ;  Carpenter  v.  Washing- 

2  Gordon  v.  Mass.  Fire  &  Marine  ton  Ins.  Co.  of  Providence,  16  Peters's 
Ins.  Co.,  2  Pick.  249.  Ct.  R.  495,  S,  C,  4  Howard's  Sup. 

^  Lazarus  i\  Commonwealth  Ins.  Co.,  Ct.  R.  185. 

19Pick.R.81;  S.C.,5Pick.R.  76.  6  Yallop,   E.x   parte,   15    Ves.  60; 

4  Page  V.  Western  Ins.  Co.,  19  La.  Houghton,  E.n.  parte,  17  Yes.  253. 
R.  49. 


164  INSURABLE   INTEREST.  [CHAP.  III. 

A  vessel  going  down  the  St.  Lawrence  sustained  damage  ren- 
dering repairs  necessary,  and,  to  raise  funds  to  make  the  same, 
the  master  mortgaged  the  vessel  as  security  for  his  bills  on  the 
owners  and  ordinary  interest.  Assuming  that  the  circumstances 
authorized  the  master  to  raise  the  funds  in  this  way,  Mr.  Baron 
Piatt  thereupon  rightly  ruled,  that  the  lenders  had  an  insurable 
interest  to  the  amount  advanced.  But  Jervis,  C.  J.,  and  his  asso- 
ciates, Cresswell,  Williams,  and  Talfourd,  of  the  English  Common 
Pleas,  on  the  case  coming  up,  held  that  the  master  had  not,  in  his 
capacity  as  such,  authority  to  pledge  the  vessel,  and  at  the  same 
time  bind  his  owners  personally  for  advances,  though  necessary  for 
repairs.^ 

By  the  British  registry  act,-  the  ownership  of  a  mortgagee  is 
distinguished  in  the  register  from  the  absolute  ownership.  In  a 
case  decided  in  the  Court  of  King's  Bench,  since  the  passing  of 
that  statute,  a  mortgagee  of  a  ship  whose  lien  amounted  to  £900, 
effected  insurance  to  the  amount  of  £3,700  in  two  policies,  in 
each  of  which  the  ship  was  valued  at  £3,000,  and  the  whole 
amount  insured  in  both  policies  was  paid  to  the  assured  ;  and  one 
set  of  underwriters,  after  learning  that  another  policy  had  been 
made,  brought  an  action  to  recover  back  their  proportion  of  the 
excess  of  the  amount  paid  for  the  loss,  over  that  which  the  mort- 

1  Stainbank  v.  Fenning,  6  Eng.  Law  1  Peters's  Ad.  Dec.  223,  that  the  mas- 

&  Eq.  R.  (Press  of  Little,  Brown  &  ter  himself  has  a  lien  on  the  proceeds 

Co.)  412;  S.  C,  20  Eng.  Law  J.  R.  of  the  ship  in  an  admiralty  court,  and 

(x.  s.)  Com.  PI.  226.    Sec  also  Smith  also  a  claim  upon  his  owners  for  mo- 

V.  Plummcr,  1  B.  &  Aid.  575;  The  ncys   necessarily   expended   by   him 

Augusta,  1   Dod.  Ad.  R.  283  ;   The  abroad,  which  is  surely  an  equitable 

Rnlncon,  1   Hagg.  Ad.  R.  13;    The  doctrine,  and  affords  a  ground  to  infer 

Trident,  1   W.   Rob.   33  ;    Bcldon  v.  his  authority  to  give  to  another  such 

Campbell,  G  Eng.  Law  &  Eq.  R.  (Press  lien  and  claim,  contrary  to  the  doc- 

of  Little,  Brown  &  Co.)  472 ;  S.  C,  20  trine  of  the  English  courts  of  common 

Eng.  Law.J.  R.  (x.  s.)Exch.  342,ovcr-  law  just  cited,  that  go  absolutely  to 

rulitig  Richards  v.  Lyall,  7  Price,  592.  deny  the  master  authority  in  any  case 

See  Abbott  on  Shipping,  part  2,  c.  3,  to  mortgage  the  ship,  a  mortgage  be- 

and  notes  by  Story.     Also  The  Ilun-  ing,  by  its  essential  character,  collate- 

ter,  Ware's  R.,  District  Court  of  U.  S.  ral   to  a   debt  or  obligation   of  the 

in  Maine,  219.     It  is  held  by  Peters,  owner. 

J.,  in  (jlardner  v.  Ship  New  Jersey,  ~  Stat.  6  Geo.  IV.  c.  110,  s.  45. 


SECT.  IV.]   INTEREST  OF  A  MORTGAGEE  OR  TRUSTEE.       165 

gagee  had  a  right  to  recover  on  the  two  policies.  The  court  held, 
that,  unless  it  appeared  that  the  insurance  was  intended  to  cover 
the  whole  value  of  the  vessel,  the  assured  was  only  entitled  to 
recover  (and  accordingly  in  this  case  could  only  retain)  the  amount 
of  his  lien.^ 

290.  A  mortgage  or  other  pledge  of  property  as  security  against 
a  contingent  liability,  gives  an  insurable  interest  to  the  yarty  to 
whom  it  is  so  transferred,  to  the  amount  of  his  liability. 

It  was  so  held  in  case  of  the  transfer  of  a  ship  and  cargo  to  a 
party  who  had  given  a  bond  to  answer  to  a  decree  which  might 
be  given  in  a  superior  court  on  appeal  by  the  captors.  On  total 
loss  and  abandonment,  he  recovered  against  his  underwriters.^ 

291.  Where  goods  are  consigned  by  a  debtor  with  orders  to  the 
consignee  to  pay  the  proceeds  to  his  creditor,  without  any  agree- 
ment between  the  debtor  and  creditor  to  that  effect,  the  creditor 
has  an  insurable  interest  in  the  goods. ^ 

The  bill  of  lading  of  goods  being  assigned  by  the  consignee  as 
security  for  advances,  the  lender  has  an  insurable  interest  in  the 
goods."* 

292.  A  creditor,  having  a  lien  on  property,  has  an  insurable 
interest  to  the  extent  of  his  Uen.^ 

293.  A  trustee  as  he  has  a  legal  interest  in  the  thing  may  insure,  ^ 
and  represent  the  property  to  be  his  own,  and  the  policy  may  be 
in  his  own  nameJ 

So  Lord  Kenyon  was  of  opinion,  that  an  executor,  who,  as 
such,  and  accordingly  as  trustee,  held  an  annuity  bond,  thereby 
had  an  insurable  interest.^  And  Lord  Ellenborough  says,  he  may 
insure  before  probate  of  the  will.^ 

1  Irving  V.  Richardson,  2  B.  &  Ad.        6  5  B.  &  P.  324. 

193.  7  Pratt  v.  Phoen.  Ins.  Co.,  1  Browne's 

2  Russell  V.  United  Ins.  Co.,  4  Dall.     (Penn.)  R.  267. 

421 ;  S.  C,  1  Wash.  C.  C.  R.  409.  8  Tidswell   v.   Ankerstein,   Peake, 

SHillr.  Secretan,  1  B.  &P.  315.  151. 

4  Sutherland  v.  Pratt,  12  Mees.  &  9  Stirling  ?;.Vaughan,  11  East,  619  ; 
W.  16 ;  S.  C,  11  id.  296.  S.  C,  2  Camp.  35. 

5  Wells  V.  Philadelphia  Ins.  Co.,  9 
Serg.  &  R.  103. 


166  INSURABLE   INTEREST.  [CHAP.  III. 

294.  Property  being  sold,  with  condition  that  it  shall  remain 
as  collateral  security  to  the  vendor,  he  still  has  an  insurable  inte- 
rest to  the  amount  of  his  demand.^ 

295.  The  interest  of  the  mortgagee  being  in  its  essential  cha- 
racter conditional,  the  beneficial  interest  in  the  policy  effected  by 
him  on  the  mortgaged  subject  should  be  considered  so  also. 

A  loss  having  been  paid  on  a  share  in  a  vessel  mortgaged  on  an 
agreement  that  it  should  be  at  the  risk  of  the  mortgager  as  to  all 
"losses  not  covered  by  insurance,"  and  insured  "by  the  mort- 
gagee for  the  owners,"  and  the  debt  paid  and  vessel  thus  redeemed, 
it  was  rightly  held  in  Maine,  that  the  mortgagee  was  thereupon 
accountable  to  the  mortgager  for  the  net  proceeds  of  the  insurance,^ 
since  the  policy  was  expressed  to  be  for  the  benefit  of  both  the 
mortgagee  and  mortgager. 

296.  A  policy,  made  by  order  of  the  mortgager,  does  not  enure 
to  the  benefit  of  the  mortgagee  or  pledgee  unless  it  is  expressed  to 
be  for  his  benefit,  and  authorized  or  adopted  by  him,  or  is  assigned 
to  him  by  a  valid  assig7iment. 

Some  sugars  were  sold  at  Norfolk,  in  Virginia,  upon  an  agree- 
ment tliat  the  supercargo  should  be  trustee  for  the  parties,  to  hold 
and  apply  the  proceeds  to  secure  the  payment  of  the  bills  drawn 
on  London,  by  the  purchaser,  in  favor  of  the  vendor  for  the  price, 
namely,  £27,201.  The  purchaser  ordered  his  correspondents  in 
London,  on  whom  he  had  drawn  bills  for  the  price,  to  make  in- 
surance, which  they  did,  to  the  amount  of  £35,000,  to  cover  the 
first  cost  and  premium.  They  did  not  accept  the  bills.  The 
sugars  were  lost  on  the  voyage  by  capture,  and  the  underwriters 
paid  a  total  loss  to  the  London  firm  on  whom  the  bills  were  drawn. 
Tliey  paid  a  great  part  of  the  bills,  but  there  remained  a  balance 
due  on  them.  The  remainder  of  the  amount  received  from  the 
underwriters  they  had  paid  over  to  their  principal,  the  purchaser 
of  the  sugars,  who  became  bankrupt.  No  agreement  appears  to 
have  been  made,  that  the  policy,  as  well  as  the  sugars  themselves, 
should  be  j)ledged  as  security  for  the  payment  of  the  bills.     The 

1  Vairin  v.  Canal  Ins.  Co.,  10  Ohio        2  White    v.   Mann,    2G   Maine   R. 
R.  561.  361. 


SECT,  v.]  INTEREST   OF   A   LENDER,  ETC.  1G7 

agents  who  effected  tlie  policy  on  the  order  of  the  purchaser,  were 
held  not  to  be  answerable  to  the  administrator  of  the  vendor,  for 
the  money  received  from  the  underwriters,  to  the  amount  of  the 
deficiency  for  payment  of  the  bills. ^  The  case  turns  upon  the 
express  or  implied  agreement  of  the  agents  to  apply  the  money 
received  to  the  discharge  of  the  bills.  They  had  studiously  avoided 
making  any  such  express  agreement.  No  notice  is  stated  in  the 
case.  It  appears  very  probable,  however,  from  the  statement  of 
the  case,  that  the  agents  knew  that  the  sugars  and  proceeds  were 
so  pledged.  The  case  accordingly  admits  of  the  construction,  that 
a  policy  of  insurance  made  by  the  order,  and  on  behalf,  of  the 
pledger,  on  goods  pledged  to  the  full  value,  does  not  follow  the 
pledge. 

297.  A  payment  by  the  insurers  to  a  mortgagee  for  damage  to 
the  mortgaged  premises  by  fire,  under  a  policy  originally  made  in 
favor  of  the  mortgager,  and  by  him  assigned  to  the  mortgagee,  as 
collateral  security  for  the  debt,  {5  so  far  satisfaction  of  the  debtr- 

SECTION  v.       INTEREST    OF    A  LENDER    IN   BOTTOMRY   AND    RESPON- 
DENTIA,   AND    UNDER   A    SALE    BY   THE    MASTER. 

298.  A  marine  hypothecation  is  a  maritime  contract  whereby 
the  owner  or  his  agent  pledges  his  ship  or  goods  as  security  for  a 
debt  accruing  on  account  of  advances  or  other  consideration,  and 
payable  on  condition  of  the  subject  being  safe,  or  in  proportion 
or  to  the  amount  of  the  part  of  it  saved,  from  the  marine  perils 
specified  in  the  contract.'^ 

The  lender  or  creditor,  in  consideration  of  the  stipulated  rate  of 
interest,  which  being  above  the  common  rate  is  called  marine 
INTEREST,  takes  upon  himself  certain  perils  and  losses,  as  of  cap- 
ture, the  seas,  he,  or  all  perils  and  losses  usually  insured  against, 
or  all  perils  and  losses  whatsoever.    If  the  pledged  subject  is  lost  by 


1  Neale  v.  Reld  and  Irving,  1  B.  &  3  See  definition  of  Pothier,  Contrat 
C-  657.  a  La  Grosse,  No.  1,  cited  by  Boula/, 

2  Robert  v.  Traders'  Ins.  Co.,  17  Droit  Com.,  tit.  9,  s.  1,  torn.  3,  p.  6, 
Wend.  631.  ed.  1822. 


168  INSURABLE   INTEREST.  [cHAP.  III. 

such  perils,  the  debt  is  thereby  cancelled.  Or,  by  some  contracts, 
if  a  partial  loss  so  happen,  a  corresponding  part  of  the  debt  is  can- 
celled. Such  pledge  of  a  vessel  is  denominated  Bottomry,  that 
is,  a  pledge  of  the  vessel's  bottom  ;  and  such  a  pledge  of  the  cargo 
is  Respondentia.  The  contract  is  usually  made  by  an  instru- 
ment under  seal,  called  a  Bottomry  or  Respondentia  Bond  ; 
or  if  both  ship  and  cargo  are  pledged  in  the  same  instrument,  a 
"Bottomry  and  Respondentia  Bond."  The  hypothecated  ship  or 
cargo  remains  in  possession  of  the  borrower,  subject  to  be  taken 
possession  of,  under  admiralty  process,  by  the  lender,  on  forfeiture 
by  the  borrower,  under  the  conditions  of  the  bond,  and  sold  for 
satisfaction  of  the  debt. 

299.  A  bottomry  and  respondentia  bond  is,  in  some  respects, 
similar  to  a  mortgage,  and,  like  it,  vests  an  insurable  interest  in  the 
lender  or  creditor. 

The  property  pledged  is  not  put  into  the  possession  of  the 
lender,  as  in  the  case  of  a  mortgage.  Mortgaged  property  is  also 
at  the  risk  of  the  mortgager,  but  in  bottomry,  or  respondentia,  the 
lender  stands  in  the  place  of  the  insurer. 

300.  There  is  greater  reason  why  the  lender  on  bottomry  and 
respondentia  should  have  an  insurable  interest  in  the  thing  pledged, 
thayi  that  a  mortgagee  should  have  such  an  interest ;  for,  if  the 
properly  is  lost,  he  loses  his  debt,  whereas  a  mortgagee  still  has 
his  claim  subsisting  against  his  debtor.  It  has  always  been  held 
that  the  lender  has  an  insurable  interest  in  the  ship  or  goods  hypo- 
thecated.i 

301.  The  insurable  interest  of  a  party,  to  ivhom  property  is 
hypothecated,  will  depend  -upon  the  validity  of  the  hypothecation. 

The  master,  merely  as  such,  without  authority  or  ratification 
otherwise  expressly  or  impliedly  given  by  the  owner,  can  make  a 
valid  hypothecation  of  the  vessel  only  when  he  is  at  so  great  a 
distance  from  the  owner,  that  it  is  not  practicable,  or  is  plainly 
inexpedient  and   unreasonable  to  delay  for  instructions  from  him, 


1  Ilarman  r.  Vaiiluilton,' 2  Vcrn.  1  Emer.  237,  c.  8,  s.  II;  Kenny  v. 
717  ;  Williams  r.  Smith,  2  Caines,  13  ;  Clarkson,  1  Johns.  385;  Glover  v. 
S.  C,  2  Caincs'a  Cas.  in  Error,  110 ;     Black,  3  Burr.  1394  ;  1  W.  Bl.  432. 


SECT,  v.]  INTEREST   OF   A  LENDER,  ETC.  169 

and  then  only  in  case  of  necessity  to  obtain  funds  in  order  to  save 
the  vessel  or  prosecute  the  voyage,  and  only  in  case  of  its  satisfac- 
torily appearing,  under  the  circumstances,  to  be  a  suitable  way  of 
obtaining  the  funds. ^  His  authority  to  hypothecate  or  sell  the 
cargo  is  still  more  restricted.-  Accordingly  no  insurable  interest 
is  derived  under  the  master's  hypothecation  or  sale  of  the  ship  or 
cargo  not  authorized  by  the  circumstances.^ 

In  regard  to  an  hypothecation  of  the  cargo  by  the  master,  a 
question  arose  in  one  case,  whether,  if  there  be  specie  and  other 
cargo  on  board,  he  must  first  apply  the  specie  not  belonging  to 
his  owners,  before  hypothecating  the  cargo  not  belonging  to  them. 
Mr.  Justice  Story  says  :  "  I  am  not  prepared  to  say  there  is  any 
absolute  rule,  which  compels  the  master  at  all  events,  and  under 
all  circumstances,  to  make  use  of  the  moneyed  coin  of  third  per- 
sons, which  he  happens  to  have  on  board,  in  preference  to  all 
other  modes  of  proceeding.  There  may  be  cases  in  which  the 
use  of  the  money  would  be  the  greatest  sacrifice  that  could  be 
made,  and  the  whole  object  of  profit  in  the  voyage  would  be 
thereby  defeated.  In  all  cases  much  must  be  left  to  the  master's 
discretion,  and  if  he  acts  bona  fide,  and  with  reasonable  care,  the 
rights  of  the  parties  are  bound  by  his  acts." 

302.  In  the  same  case,  Mr.  Justice  Story  says  :  "  If  the  master 
has  money  of  his  own  on  board,  sufficient  for  the  ship's  necessities, 
it  is  by  no  means  certain  that  he  has  a  right  in  such  case  to  resort 
to  the  extraordinary  measure  of  bottomry." 


1  See  infra,  No.   1561,  1565,1566,  2  See  infra,  No.  1552,  1561,  1565, 

1569 ;  also  Beldon  v.  Campbell,  6  Eng.  1566. 

Law  &  Eq.  R.  (Press  of  Little,  Brown  ^  An  hypothecation  by  the  consul 

&  Co.)  472;  S.  C,  Eng.  Law  J.  R.  was  held   by  Dr.  Liishington    to  be 

(n.  s.)  Exch.  342,  overruling  Robin-  valid,  the  ship  being  rightfully  in  his 

sonr.  Lyall,  7  Price,  592;  TheNuova  control,  and  the  appointment  of  the 

Loanese,  Per  Lushington,  V.  C,  20  master  being  at  the  same  time  within 

Eng.  Law  &  Eq.  R.  (Press  of  Little,  his  authority.     The  Cynthia,  20  Eng. 

Brown  &  Co.)  ;  S.  C,  1 7  Eng.  Jurist,  Law  &  Eq.  R.  (Press  of  Little,  Brown 

263.      The   French   law  is    similar.  &  Co.)  ;  6  S.  C,  Eng.  Jur.  R.  (Adm.) 

Boulay  Paty,  Droit   Com.  tit.  9,  s.  4,  749. 
tom.  3,  p.  44,  ed.  1822. 

VOL.  I.  15 


170  INSURABLE   INTEREST.  [CHAP.  III. 

"Though  I  would  not  absolutely  decide  that  under  no  circum- 
stances he  could  so  resort  where  he  has  sufficient  money  of  his 
own  on  board ;  yet,  if  he  can,  it  must  be  a  case  of  very  peculiar 
character,  and  such  as  ought  to  induce  the  court  to  uphold  it  upon 
great  public  principles."  ^  But  m  case  of  there  being  money  of 
the  owner  of  the  ship  on  hoard,  it  is  very  clear  that  the  master 
cannot  bottomry. 

Dr.  Lushington,  Judge  of  the  High  Court  of  Admiralty,  remarks 
that  the  common  law  formerly  "  went  almost  to  the  extent,  that 
the  master  could  not,  under  any  circumstances  whatever,  sanction 
the  sale  of  a  ship  abroad.  I  take  the  law  now  to  be,  that,  where 
an  urgent  necessity  exists,  which  the  master  cannot  meet,  it  is  com- 
petent to  him  to  sell  the  vessel."  ^ 

The  authority  of  the  master  to  hypothecate  the  cargo  is  governed 
by  a  similar  rule.  If  he  has  no  funds,  and  can  obtain  credit  only 
on  extremely  exorbitant  terms,  he  may  resort  to  the  hypothecation 
of  the  ship  and  pending  freight,  and  if  these  do  not  suffice,  then 
he  may  hypothecate  the  cargo  ;  and  if  none  of  these  resources  will 
affiard  the  necessary  relief,  and  the  property  cannot  safely,  or  ex- 
cept by  exorbitant  sacrifice,  be  preserved  until  he  can  communi- 
cate with  his  owners,  or  their  agents,  or  some  one  who  might  give 
him  aid,  then  he  is  authorized  by  the  necessity  of  the  case  to  sell 
both  ship  and  cargo.^ 

303.  The  sale  of  the  vessel  by  the  master  in  a  foreign  port  does 
not  defeat  a  prior  bottomry  bond,  nor  exonerate  the  ship  from  the 
lien  of  the  seamen  for  wages,  even  for  those  of  a  prior  passage, 
when  the  shipping-paper  provides  for  postponement  of  payment 
until  return  to  the  home  port;"*  and  the  insurable  interest  of  the 
different  parties  will  be  affected  accordingly. 

Thus,  where  the  master  sold  his  vessel  at  Bahia,  it  was  held  to 

1  Sliij)  Packet,  Barker,  master,  3  (Press  of  Little,  Brown  &  Co.)  641  : 
Mason,  255.  S.  C,  14  Eng.  Jur.  605.     Sec  also 

2  The  Catliarine,  1  Eng.  Law  &  chapter  on  Total  Loss  and  Abandon- 
Eq.  R.  (Press  of  Little,  Brown,  &  Co.)  ment,  infra. 

679  ;  S.  C,  16  Eng.  Jur.  '2;U.  ^  The  Louisa  Bertha,  4  Eng.  Law 

3  Sec  The  Bonaparte,  3  "W.  Ptol).  &  Eq.  11.  (Press  of  Little,  Brown  & 
'J08 ;  S.  C,  1    Eng.  Law  &  Eq.  II.     Co.)  665. 


SECT.  VI.]  INTEREST   OF  A   BORROWER,   ETC.  171 

be  still  subject  to  a  previous  bottomry  bond  on  returning  to  Eng- 
land.i 

Where  the  sale  is  by  decree  of  a  competent  tribunal,  the  effect 
may  be  different  as  to  prior  liens,  as  the  court  is  presumed  "  to 
have  protected  the  purchaser,  as  far  as  the  law  will  allow,  against 
all  claims  in  the  nature  of  a  lien."^ 

304.  A  bottomry  bond  may  stipulate  for  a  very  high  rate  of 
interest  tvithout  being  thereby  rendered  void. 

305.  A  bottomry  bond  for  a  voyage  from  Quebec  to  London, 
at  marine  interest  of  25  per  cent.,  was  held  by  Sir  William  Scott 
not  to  be  void  on  account  of  the  exorbitancy  of  the  rate  of  inte- 
rest.3 

306.  A  bottomry  bond  may  be  good  in  part  and  bad  in  part, 
as  a  lien,  where  a  part  of  the  money  borrowed  by  the  master,  for 
which  the  hypothecation  was  made,  was  borrowed  by  him  without 
sufficient  authority. 

"Courts  of  admiralty,"  says  Mr.  Justice  Story,  "act  ex  aequo 
et  bono,  as  courts  of  equity,  and  a  bottomry  bond  may  be  held 
good  in  part  and  bad  in  part.  So  far  as  the  money  was  properly 
advanced,  it  may  be  held  to  give  a  valid  hen,  and  be  dismissed  as 
to  the  rest.  If  the  premium  has  been  unduly  inflamed,  by  reason 
of  the  master's  necessities,  the  court  may  moderate  it."  ^  In  such 
case,  accordingly,  the  insurable  interest  will  be  commensurate  with 
the  validity  of  the  bond. 


SECTION  VI.       INTEREST    OF    A   BORROWER    IN    BOTTOMRY    AND    RE- 
SPONDENTIA. 

307.  The  borroiver  on  bottomry  or  respondentia  may  have  an 
insurable  interest  in  the  property  pledged,  no  less  than  a  mort- 
gager, but  with  this  distinction,  that  the  mortgager  remains  liable 
for  the  whole  loss  upon  the  goods  ;  if  they  are  lost,  no  part  of  his 

1  The  Catharine,  1  Eng.  Law  &  Eq.  ^  "White  v.  Ship  Da3dalus,  1  Stuart's 
R.(Pressof  Little,  Brown  &  Co.)  679  ;     Lower  Canada  Reports,  130. 

S.  C,  16  Eng.  Jur.  231.  4  Ship  Packet,  Barker,  master,  3 

2  Ibid.  ]\Iason,  255. 


172  INSURABLE   INTEREST.  [CHAP.  III. 

debt  is  discharged  ;  whereas,  if  the  hypothecated  ship  or  goods  are 
lost,  the  borrower  is  discharged  from  his  debt.  If,  therefore,  goods 
are  hypothecated  for  the  full  value,  the  borrower  is  not  interested 
in  their  safety,  as  far  as  the  risks  are  assumed  by  the  lender  ;  for 
if  they  are  saved,  they  go  to  satisfy  the  debt ;  if  they  are  lost  by 
the  risTcs,  within  the  hypothecation,  he  is  discharged  from  the  debt. 
He  is  accordingly  hiierested  only  so  far  as  the  value  of  the  pro- 
perty exceeds  the  amount  for  which  it  is  pledged. 

It  has  accordingly  been  decided,  that  the  owner  of  a  vessel 
bottomried  for  more  than  its  full  value,  has  no  insurable  interest, 
in  respect  to  the  perils  assumed  by  the  lender.^ 

308.  Nothing,  however,  prevents  the  parties  to  an  hypotheca- 
tion from  agreeing  that  the  lender  shall  assume  only  the  sea-risJcs 
or  the  risk  of  capture.  In  such  case  the  borrower  would  still  re- 
tain an  insurable  interest  in  the  property,  to  its  full  value,  in  rela- 
tion to  the  risks  not  assumed  by  the  lender. 

SECTION  VII.   INTEREST  OF  A  CONSIGNEE,  FACTOR,  AGENT.  OR 

CARRIER. 

309.  A  distinction  is  to  be  kept  in  mind  between  the  agent's 
insurable  interest,  and  his  authority  to  insure  for  his  consignor  or 
other  principal. 

A  consignee,  factor,  or  agent,  having  a  lien  on  goods,  to  the 
amount  of  his  advances,  acceptances,  and  liabilities,  stands  in  this 
respect  precisely  in  the  situation  of  a  mortgagee. 

A  debt  is  due  to  him  from  his  principal,  for  which  he  holds  the 
property  as  collateral  security,  and  the  property  is  at  the  risk  of 
the  principal,  as  the  debt  would  still  subsist,  though  the  property 
should  bf  lost  ;  and  the  excess  over  the  proceeds  of  the  goods 
would  be  still  due  to  him,  in  case  of  the  proceeds  being  insufficient 
to  satisfy  his  claims.     He  has  therefore  an  insurable  interest  in  the 

1  Williams  v.  Smith,  2  Caines,  13  ;  goods  bound  on  an  East  India  voyage, 

S.  C,  2  Caincs's  Cas.  in  Error,  119.  to  "the  value  of  liis  interest  in  the 

The  statute  of  the  I'Jth  Geo.  II.  c.  37,  ship,  or  in  the  goods  on  board,  exclu- 

limitH    the    insurable    interest  of  tlie  sivc  of  the  money  so  borrowed." 
owner   of  an    hypolheoated   ship   or 


SECT.  VII.]  INTEREST   OF   A   CONSIGNEE,   ETC.  173 

goods  to  the  amount  of  his  lien.  And  whether  the  lien  arises  from 
expenses  and  charges  on  account  of  the  specific  goods,  or  is  a 
general  balance,  can  make  no  difference  ;  if  the  lien  exists,  it  in- 
volves an  insurable  interest.  A  consignee  or  factor  has  not,  as 
such,  in  all  cases,  an  insurable  interest  on  his  own  account  in  the 
property  to  its  full  value ;  his  interest  is  only  commensurate  with 
the  loss  he  may  sustain  by  the  destruction  of  the  property ;  it  is 
limited  to  the  extent  of  the  lien  he  has,  or  will  have,  when  the 
property  comes  into  his  hands.^ 

310.  A  commission  merchant,  to  whom  goods  are  consigned  for 
sale,  has  an  insurable  interest  to  the  amount  of  his  commissions  on 
the  sale,  from  the  time  of  the  goods  being  consigned  to  him.  He 
may  make  insurance  in  anticipation  of  the  consignment,  and  the 
policy  will  take  effect  on  the  consignment  being  made,  and  the 
goods  becoming  subject  to  the  risks  insured  against.^ 

311.  There  are  various  sorts  of  consignees,  agents,  and  factors, 
some  having  authority  to  sell  the  property,  others  to  take  posses- 
sion of  it  only.  Nor  is  it  settled  that  all  persons,  who  may  make 
something  by  selling  or  keeping  property,  or  contracting  in  regard 
to  it,  have  therefore  an  insurable  interest. 

It  is  questionable  whether  a  broker,  employed  to  sell  a  house, 
would  have  an  insurable  interest  in  it  to  the  amount  of  his  com- 
missions. If  an  agent  or  consignee  has  a  subsisting  demand,  for 
which  the  property  is  pledged,  or  will  become  so  on  its  coming 
into  his  hands,  the  principal  having  in  the  latter  case  consigned  it 
to  him,  or  otherwise  having  given  him  a  right  to  take  possession  of 
it,  he  unquestionably  has  an  insurable  interest. 

A  supercargo  who  is  to  receive  a  compensation  out  of  the  home- 
ward cargo,  as  he  begins  to  render  his  services  at  the  commence- 
ment of  the  voyage  and  so  continues,  sustains  an  absolute  loss  of 
his  time  and  skill  in  case  the  cargo  does  not  arrive.  An  insurance 
upon  his  interest  is,  therefore,  strictly  a  contract  of  indemnity. 


1  Seamans  r.  Loring,  1  Mason,  127 ;        2  Putnam  i\  Mercantile  Mar.  Ins. 
Russell  V.  Union  Ins.  Co.,  1  Wash.     Co.,  5  Mete.  386. 
C.  C.  R.  409 ;  Wolff  V.  Horncastle,  1 
B.  &  P.  316. 

15* 


174  INSUKABLE   INTEREST.  [CHAP.  III. 

And  it  is  held,  in  general,  that  a  consignee,  supercargo,  or  other 
person,  having  a  contract,  which  may  afford  him  a  profit  or  emolu- 
ment, has  an  insurable  interest  in  respect  to  the  subject  of  such  con- 
tract, so  soon  as  he  has  done  something,  or  begun  to  incur  expenses 
and  take  steps,  towards  the  execution  of  it. 

Where  the  owners  of  a  cargo  agreed  to  pay  the  supercargo  ten 
thousand  dollars  "  out  of  the  proceeds  of  any  cargo  the  ship  might 
brinff  from  Batavia,  or  to  deliver  him  part  of  such  cargo  to  that 
amount,"  on  the  ship's  arrival  at  New  York ;  it  was  not  made  a  ques- 
tion, that  the  supercargo  had  an  insurable  interest  to  that  amount.^ 

A  quantity  of  moss  shipped  in  Norway  was  consigned  to  the 
Cudbear  Company,  so  called,  of  London,  who  refused  the  con- 
signment, upon  which  Wolff  and  his  partner,  having  no  particular 
authority,  otherwise  than  as  being  the  general  agents  of  the  con- 
signor, effected  insurance,  retaining  the  bills  of  lading  in  their  own 
hands,  and  accepted  bills  on  account  of  the  consignment  to  the 
amount  of  £300.  Their  proceedings  were  subsequently  approved 
of  by  the  consignor.  They  were  held  to  have  an  insurable  inte- 
rest to  the  amount  of  their  acceptance.  Buller,  J.,  said  :  "I  agree 
that  a  debt  which  has  no  reference  to  the  article  insured,  and 
which  cannot  make  a  lien  on  it,  will  not  give  an  insurable  interest. 
But  a  debt  which  arises  in  consequence  of  the  article  insured,  and 
which  would  have  given  a  lien  on  it,  does  give  an  insurable  inte- 
rest." 2 

Where  goods  were  shipped  by  Meybohm,  at  St.  Petersburg,  to 
Amyand,  of  London,  to  whom  a  general  balance  was  due  from 
Meybohm  ;  though  the  bill  of  lading  was  indorsed  by  Meybohm 
to  Tamesz,  another  Russian,  Lord  INIansfield  and  the  other  judges 
held,  that  Amyand  had  an  insurable  interest  in  the  goods.  "  Vari- 
ous persons  may  insure  various  interests  on  the  the  same  bottom  ; 
here  Mr.  Amyand  had  an  interest  of  his  own,  distinct  from  the 


>  Robinson  v.  New  York  Ins.  Co.,  2 -vVolfrr.IIorncastIe,lB.&P.  316  ; 

2  Caincs,  357;  New  York  Ins.  Co.  v.  SecalsoConwayi-.  Gray,  10  East,  53G  ; 

Robinson,  1  Johns.   GIG.      Sec  also  Russell  v.  Union  Ins.  Co.,  1  Wash.  C. 

Fiindt  V.  Lc  Mesuricr,  Park,  8th  ed.  C.  R.  409. 
503. 


SECT.  VIL]  interest   OF   A   CONSIGNEE,   ETC.  175 

interest  of  Meybolim  ;  he  had  a  lien  upon  these  very  goods,  as  a 
factor  to  whom  a  balance  was  due."  ^ 

In  the  case  of  ships  captured  and  carried  into  Spain,  where  a 
compromise  was  made  with  the  captors  by  giving  up  a  part  of  the 
cargoes,  and  expenses  were  incurred  on  account  of  the  property 
by  Cowen,  who  consigned  a  part  of  it  to  Robertson,  in  England, 
on  whom  he  drew  bills  for  his  expenses  and  disbursements,  which 
Robertson  accepted  ;  it  was  held,  that  Robertson  acquired  an 
insurable  interest  by  accepting  the  bills.  And  the  circumstance 
that  the  original  owners  had,  in  the  mean  time,  abandoned  the 
property  to  their  insurers,  was  held  not  to  affect  Robertson's  inte- 
rest.'-^ 

Lord  Ellenborough,  however,  seemed  to  think,  that  an  agree- 
ment for  a  commission  on  such  freight  as  the  assured  might  pro- 
cure for  a  vessel  owned  by  another  person,  did  not  give  an  insura- 
ble interest.  Knox,  of  Dublin,  had  an  agreement  with  a  house 
at  Jamaica  for  loading  such  vessel  as  he  should  send  to  that  island, 
and  he  agreed  for  a  vessel  to  go  out  to  Jamaica  for  a  cargo,  on 
the  freight  of  which  the  owners  were  to  allow  him  a  commission. 
The  vessel  was  detained  at  Jamaica  so  long,  under  an  admiralty 
process,  that  she  lost  the  season,  and  the  Jamaica  house  sent  on 
their  goods  by  another,  and  Knox  accordingly  failed  of  receiving 
the  stipulated  commission.  The  judge  said  :  "It  strikes  me,  that 
this  was  a  mere  expectation.  The  assured  had  an  interest  in  the 
ship  only  in  the  expectation  of  a  cargo.  This  case  carries  us  into 
the  land  of  dreams,  and,  if  supported,  would  introduce  the  prac- 
tice of  insuring  two  thousand  pounds  prize  in  a  lottery,  without 
purchasing  a  ticket."  ^ 

But  it  is  not  easy  to  distinguish  the  interest  of  Knox  in  this  case 
from  what  has  been  allowed,  under  policies  on  lives  and  on  profits, 
to  constitute  an  insurable  interest.  A  case  occurred  in  Massachu- 
setts, upon  a  policy  on  the  commissions  that  the  assured  expected 

1  Godin  V.  London  Ass.  Co.  1  Burr,  ported  differently  by  Park,  405.  It 
489 ;  2  Kenyon,  254  ;  1  W.  Bl.  103.  seems  to  have  been  a  sufficient  objec- 

2  Robertson  v.  Hamilton,  14  East,  lion  to  the  claim  of  the  assured  in  this 
522.  case,  that  the  loss  was  not  occasioned 

3  Knox  V.  Wood,  1  Camp.  541,  re-  by  the  perils  insured  against. 


176  INSURABLE   INTEREST.  [CHAP.  III. 

to  receive  as  consignee  of  a  vessel,  and  no  objection  was  made  on 
the  ground  of  the  insufficiency  of  the  interest.-^ 

A  case  has  occurred  in  New  York  respecting  a  fire  policy 
effected  by  the  consignees,  into  whose  hands  goods  came  for  sale, 
without  any  instruction  as  to  insurance,  and  without  any  ratifica- 
tion of  the  policy  on  the  part  of  the  principals,  until  after  they  had 
a  knowledge  of  the  loss.  The  policy  was  effected  by  commission 
merchants  in  New  York,  "  on  goods,  as  well  the  property  of  the 
assured,  as  held  by  them  in  trust  or  on  commission."  The  assured 
had  made  advances  to  only  a  part  of  the  amount  insured  ;  the 
question  being,  whether  they  had,  as  commission-merchants,  an 
insurable  interest  in  the  goods  to  their  full  value,  Jones,  C.  J.,  and 
his  associate  justices  of  the  Superior  Court  of  the  city  of  New 
York,  held  that  the  consignees  had  an  insurable  interest  in  the 
goods  on  account  of  their  own  interest,  and  as  trustees,  to  their 
full  value,  which  was  covered  by  a  policy  in  this  form,  they  being 
liable  to  account  to  their  principals  for  the  excess  of  the  insurance 
over  the  amount  of  their  own  claims.^ 

This  decision  refers  to  the  authority  of  a  consignee  of  goods 
with  power  to  sell,  who  is  in  possession  of  the  goods.  On  the 
authority  of  a  consignee  who  merely  has  notice  of  the  consign- 
ment, the  Chief  Justice  says  :  "If  he  should,  upon  receipt  of  the 
bills  of  lading,  effect  insurance  bona  fide,  and  for  just  cause,  upon 
the  goods  consigned  to  him  for  the  voyage  of  importation,  I  am 
not  prepared  to  say  that  the  contract  would  be  void,  or  that  the 
charge  of  the  premium  could  be  rejected  by  the  consignor." 

In  a  case  adjudicated  upon  in  the  English  Court  of  Common 
x'leas,  Mr.  C.  J.  Gibbs  expressed  his  opinion,  that  a  consignee 
has  an  insurable  interest  in  goods  consigned  for  sale,  to  the  full 
value  of  the  goods.-'' 

It  was  held  in  the  much  litigated  case  of  Lucena  v.  Craufurd,* 
that  commissioners  appointed   by  the  government  to  take   pos- 

1  Law  V.  Goddard,  12  Mass.  R.  112,  4  5  b.  &  P.  323,  opinion  of  Lord 

2  Do  Forest  v.  The  Fulton  Fire  &  Eldon.  See  also  De  Forrest  v.  Ful- 
Mar.  Ins.  Co.,  1  Hall's  K.  84.  ton  Fire  &  Mar.  Ins,  Co.,  1  Hall's  R. 

3  Carruthers  v.  Slicdden,  C  Taunt.  84. 
14;  S.  C,  1  Marsh.  11.  41G. 


SECT.  VII.]  INTEREST   OF   A    CONSIGNEE,   ETC.  177 

session  and  dispose  of  Dutch  prizes,  captured  in  anticipation  of  a 
war,  had  an  insurable  interest,  as  trustees  of  the  captured  property, 
to  its  whole  value. 

312.  The  master  of  the  vessel,  as  master,  is  merely  a  carrier, 
and  in  his  capacity  of  master  merely  has  no  general  insurable  inte- 
rest in  the  ship  or  cargo  ^  or  freight.  He  has  no  lien  on  ship  or 
freight  for  his  wages  ;  but  where  he  has  a  lien  on  freight  and  cargo 
for  advances,^  he  will  have  an  insurable  interest  to  the  extent  of 
such  lien. 

313.  Where  goods  are  shipped  in  the  master'' s  name  as  a  trus- 
tee, he  has  an  insurable  interest  Wee  any  other  trustee. 

Sugars  belonging  to  Medina  were  shipped  at  Porto  Rico,  for 
Baltimore,  in  the  name  of  Fitch,  the  master  of  the  vessel,  and  con- 
signed to  him,  and  all  the  documents  were  made  out  accordingly, 
the  object  being  to  cover  the  property,  Medina  being  a  Spaniard, 
and  Spain  being  then,  1822,  at  war  with  its  revolted  colonies.  It 
was  held,  that  Fitch  had  an  insurable  interest  in  the  property  to 
its  whole  value.^ 

So  a  master  or  owner  of  a  ship,  or  the  proprietor  of  any  vehi- 
cle used  for  transportation  of  goods,  has  an  insurable  interest  in 
the  goods  to  their  full  value,  against  those  risks  which  he  assumes 
as  carrier,  as,  for  instance,  the  risk  of  theft  and  that  of  negligence 
and  misconduct  of  his  servants  and  agents."* 

Such  carriers  have  also  an  insurable  interest  in  the  subject  to 
be  transported,  so  far  as  the  earning  of  the  freight  or  pay  for 
transportation  depends  on  the  safety  and  delivery  of  the  article, 
have  an  insurable  interest  in  it  to  the  amount  of  the  freight  or 
stipulated  pay,  in  respect  to  all  the  perils  and  casualties  on  which 
the  earning  of  the  freight  or  payment  for  carriage  depends,  and 
that  though  they  hire  others  to  do  the  carrying.^ 


1  Barker  v.  Marine  Ins.  Co.  2  Ma-  3  Buck  v.  Chesapeake  Ins.  Co.,  1 

son's  R.  369.  Peters's  S.  C.  R.  151. 

-  IngersoU  v.  Van  Bokkelin,  7  Co-  ^  Y>e  Forest  v.  Fulton  Ins.  Co.,  1 

wen,  670 ;  Lane  v.  Penniman,  4  Mass.  Hall's  R.  84. 

R.  92;  :Milwavd  v.  Hallett,  2  Caines,  5  Chase  u.  Washington Mu tins.  Co. 

71 ;  White  v.  Baring,  4  Esp.  22.  of  Cincinnati,  1 2  Barb.  Sup.  Ct.  R.  595. 


178  INSURABLE  INTEREST.  [CHAP.  III. 

314.  Mechanics  and  others  have,  by  the  commercial  law,  a  lien 
upon  a  foreign  vessel  or  one  of  another  state,  for  repairs,^  and 
accordingly  an  insurable  interest  to  the  same  amount. 


SECTION    VIII.        INTEREST    IN    PROFITS. 

315.  As  a  person,  who  is  not  owner  of  property,  such  as  an 
agent  or  consignee,  may  insure  his  commissions,  there  seems  to  be 
as  good  reason  why  the  owner  should  have  the  right  of  insuring 
the  profits  he  expects  to  derive  by  its  transportation,  or  any  legal 
use  he  may  propose  to  make  of  it.  Profits  are  frequently  insured ; 
nor  does  this  species  of  insurance  partaJce  at  all  of  the  nature  of 
gambling.  Lawrence,  J.,  giving  the  opinion  of  the  court,  said  : 
"As  insurance  is  a  contract  of  indemnity,  it  cannot  be  said  to  be 
extended  beyond  what  the  design  of  such  species  of  contract  will 
embrace,  if  it  be  applied  to  protect  men  from  those  losses  and  dis- 
advantages which,  but  for  the  perils  insured  against,  the  assured 
would  not  suffer  ;  and  in  every  maritime  adventure,  the  adven- 
turer is  liable  to  be  deprived,  not  only  of  the  things  immediately 
subjected  to  the  perils  insured  against,  but  also  of  the  advantages 
to  be  derived  from  the  arrival  of  those  things  at  their  destined  port. 
It  is  surely  not  an  improper  encouragement  of  trade  to  provide 
that  merchants,  in  case  of  adverse  fortune,  should  not  only  not  lose 
the  principal  adventure,  but  that  the  principal  should  not  in  con- 
sequence of  such  bad  fortune  be  totally  unproductive  ;  and  tliat 
men  of  small  fortunes  should  be  encouraged  to  engage  in  com- 
merce by  their  having  the  means  of  preserving  their  capitals  en- 
tire." 2 

316.  A  party,  having  agreed  to  purchase  an  article  on  a  cer- 
tain contingency,  has  an  insurable  interest  in  his  profits  upon  it. 

A  party  having  agreed  for  half  of  a  cargo,  on  its  arrival  in  B., 
effected  insurance  on  "profits  on  merchandise  in  schooner  S.  from 
M.  to  B."  The  cargo  was  prevented,  by  the  perils  insured  against, 
from  arriving  at  B.  It  was  held  in  Massachusetts  that  the  assured 
had  a  good  insurable  interest  in  the  i)rofits.     Mr.  Justice  Putnam 

1  The  Calisto,  Duveis's  Dist.  Ct.  R.  29.    2  Barclay  v.  Cousins,  2  East,  544. 


SECT.  VIII.]  INTEREST   IN   PROFITS.  '  179 

instanced  insurance  on  commissions,  to  show  that  direct  ownership 
is  not  necessary  to  insurable  interest ;  and,  giving  the  opinion  of 
the  court,  said,  ''  We  know  no  good  reason  why  the  owner  of 
goods  at  sea  may  not  sell  the  profits,  as  well  as  the  goods  them- 
selves." ^ 

317.  It  has  been  held,  in  many  of  the  English  cases,  that,  in 
order  to  create  an  insurable  interest  in  profits,  it  must  appear 
that  there  ivould,  probably  at  least,  have  been  a  profit,  had  the 
property  arrived  at  the  place  to  ivhich  it  was  insured? 

318.  In  the  United  States,  it  is  not  necessary  to  show  that 
there  would  actually  have  been  a  profit  in  order  to  constitute  an 
insurable  interest  in  profits. 

In  New  York,  under  a  policy  on  profits,  where  three  eighths  of 
the  goods  were  lost,  the  court  held  it  to  be  a  loss  of  that  propor- 
tion of  the  profits,  under  the  policy,  without  inquiring  whether  there 
would  have  been  any  profits  had  the  goods  arrived.^ 

Mr.  Justice  Johnson,  giving  the  opinion  of  the  court  on  the 
question,  whether  there  was  an  insurable  interest  to  which  a  valu- 
ation of  profits  could  attach,  said:  "  It  is  difficult  to  conceive,  if 
profit  be  a  mere  excrescence  of  the  principal,  as  some  judges  have 
said,  why  the  loss  of  the  cargo  should  not  carry  with  it  the  loss  of 
the  profits.  The  rule  has  convenience  to  recommend  it,  of  which 
this  case  presents  a  striking  illustration.  Here  was  a  voyage  of 
many  thousand  miles  to  be  performed,  the  final  profits  of  which 
must  have  been  determined  by  the  statement  of  the  accounts  pass- 
ing through  several  changes,  some  of  which  might  have  resulted 
in  loss,  some  in  gain,  and  in  each  case  the  good  or  ill  fortune  of 
the  adventure  turning  on  the  gain  or  loss  of  a  day  in  the  voyage. 
What  human  calculation  or  human  imagination  could  have  fur- 
nished testimony  on  a  fact  so  speculative  and  fortuitous  !  "  ^ 

1  French  v.  Hope  Ins.  Co.,  16  Pick.  SLoomis  v,  Shaw,  2  John.  Cas.  36  ; 
397.  and  see  Fosdick  v.  Norwich  Mar.  Ins. 

2  Grant  v.  Parkinson,  Park,  402  ;  6  Co.,  3  Day,  108  ;  Mumford  v.  Hallett, 
T.  R.  483,  n.;  3  B.  &  P.  85,  n.;  3  1  Johns.  433. 

Doug.  16  ;  Henrickson  v.  Margitson,  ^Patapsco  Ins.  Co.  v.  Coulter,  3 
2  East,  549 ;  Hodgson  v.  Glover,  6  Peters's  S.  C.  R.  222,  Thompson,  J., 
East, 316 ;  Eyrer.  Glover,  16 East, 218.    and  Baldwin,  J.,  dissenting.  And  see 


180  ■  INSUKABLE  INTEREST.  [cHAP.  III. 

319.  There  is,  as  is  remarked  by  Mr.  Justice  Kent,  a  great 
similarity  in  freight,  profits,  and  commissions,  the  first  being  profits 
to  arise  out  of  the  employment  of  the  ship,  the  other  two  on  the 
goods.  He  proceeds  :  "  These  insurances  on  freight,  profits,  com- 
missions, &tc.,  are  said  to  be  founded  on  the  course  and  interests 
of  trade,  and  are  greatly  conducive  to  its  prosperity.  The  doc- 
trine, however,  that  runs  through  all  the  cases  is,  that  the  assured 
must  have  an  interest  in  the  subject-matter,  from  which  the  profits 
are  to  be  derived,  in  order  to  prevent  the  policy  from  being  consi- 
dered a  wager.  Policies  on  profits  or  freight,  if  the  assured  be 
owner  of  the  subject  from  which  the  same  are  to  accrue,  are  not 
wages,  but  policies  on  a  real  and  substantial  interest."  ^ 

SECTION    IX.       INTEREST    OF    CAPTORS    AND    PRIZE    AGENTS. 

320.  Interest  in  prizes  can  be  derived  only  from  the  govern- 
ment.^ 

321.  Captors  have  an  insurable  interest  in  the  captured  pro- 
perty where  they  are  by  law  entitled  to  a  share  of  the  proceeds  of 
its  sale  in  case  of  its  being  condemned  as  prize.^ 

On  its  being  objected  that  the  captured  property  might  be  re- 
stored to  the  owners,  or  other  disposition  made  of  it.  Lord  Ellen- 
borough  said,  that  the  right  of  stopping  in  transitu  did  not  defeat 
the  insurable  interest  of  a  consignee.  "  The  indefeasibility  of  the 
property  is  not  therefore  the  criterion  of  an  insurable  interest. 
What  is  the  case  of  an  executor  ?  Probate  is  necessary  to  com- 
plete his  title,  yet  before  probate  he  has  a  title  sufficient  to  enable 
him  to  insure."  He  accordingly  was  of  opinion,  that  the  captors 
had  an  insurable  interest,  and  this  was  the  judgment  of  the  court."* 


Alsop  r.  Commonwealth  Ins.  Co.,  1  Doug.  81,  called  the  Omoa case;  Boehm 

Sumner,  451.  v.  Bell,  8  T.  R.  154  ;  Lucena  v.  Crau- 

1  Abbott  V.  Sebor,  3  Johns.  Cas.  39.  ford,  5  B.  &  P.  269 ;  Poth.  Ins.  n.  33. 

2  The  Joseph,  1  Gall.  545  ;  The  ^  Stirling  v.  Vaughan,  11  East,  C19 ; 
Elsabc,  4  Chr.  Rob.  408;  Routh  v.  2  Camp.  225.  See  also,  as  to  interest 
Thompson,  11  East,  428,  and  13  id.  of  captors.  The  United  States  r.  Pe- 
274  ;  Nic.'ol  v.  (Joodall,  10  Ves.  157.  ters,  3  Dall.  121  ;  The  Mary  Ford,  3 

^  Lc  Crag  v.  Hughes,  Park,  40G  ;  3  Dall.  188. 


SECT.  IX.]      INTEREST    OF   CAPTORS    AND   PRIZE   AGENTS.  181 

322.  The  captors  have  an  insurable  interest  on  account  of  their 
res])onsihility  for  the  ca'ptured  property,  ivhere  such  responsibility 
is  incurred  by  the  capture,  as  it  generally  is.^  And  the  extent  and 
amount  of  tiie  insurable  interest,  so  far  as  it  rests  upon  this  basis, 
is  commensurate  with  the  responsibihty.- 

323.  On  the  question,  whether  a  mere  expectation  of  a  share 
of  a  prize,  not  supported  by  any  provision  of  law,  gives  the  cap- 
tors an  insurable  interest  in  the  captured  property.  Lord  Mans- 
field remarked,  in  an  early  case,^  though  it  was  not  necessary  to 
decide  upon  the  point  in  that  case,  that,  as  "wherever  a  capture  had 
been  made,  the  crown  had  always  given  a  grant  of  it  after  con- 
demnation," this  expectation,  so  grounded,  gave  the  captors  a  suffi- 
cient insurable  interest  in  the  prize.  But  this  proposition  has  been 
doubted  by  Lord  Eldon,^  and  Lord  Ellenborough,^  and  C.  J.  Tin- 
dal.*^  They  are  inclined  to  the  opinion,  though  an  expectation 
founded  on  property,  or  a  right  of  law  or  by  contract,  gives  an 
insurable  interest,  yet  a  mere  probability,  or  merely  reasonable 
expectation  not  so  founded,  does  not  give  such  a  right. 

In  such  cases,  though  the  party  having  the  expectation  has  not 
an  insurable  interest  in  the  subject-matter  to  which  it  relates, 
which  would  support  an  insurance  upon  it  generally,  he  may  have 
a  sufUcient  interest  in  the  contingency  upon  which  his  expectation 
depends,  to  be  the  foundation  of  a  valid  contract  of  guaranty  or 
indemnity  in  relation  to  it,  if  his  interest  is  described  so  as  to  be 
well  understood  by  the  other  contracting  party,  and  if  there  is  no 
legal  objection  to  the  contract.  Such  a  contract  would  have  the 
character  of  an  insurance.  It  does  not  seem  to  be  a  merely  gam- 
bling one. 

324.  So  commissioners,  appointed  by  suficient  authority  to 
take  charge  of  prizes  or  other  property,  may,  by  the  mere  appoint- 

1  Per  Lord  Kenyon,  C.  J.,  Boehm  4  Luceiia  v.  Craiifurd,  5  B.  &  P. 
V.  Bell,  3  T.  R.  154.  269. 

2  See  also  Craufurd  v.  Hunter,  8  T.  5  Rontli  v.  Thompson,  11  East,  432 ; 
R.  13 ;  Lucena  v.  Craufurd,  3  B.  &  P.  but  see  S.  C,  13  East,  274. 

75 ;  5  B.  &  P.  269.  6  Devaux  v.  Steele,  6  BIng.  N.  C 

3  The  Omoa  case,  supra.  370. 

VOL.    I.  16 


182  INSURABLE   INTEREST.  [CHAP.  III. 

ment,  he  autJiorized,  as  trustees,  to  insure  it  to  its  full  value,  in 
their  oivn  names.^ 


SECTION    X.       INTEREST    OF    THE    CHARTERER    OF    A    SHIP. 

325.  So  far  as  a  charterer  of  a  ship  is  liable  to  damage  by 
its  loss,  he  has  an  insurable  interest. 

The  owner  of  one  half  of  a  schooner  hired  the  other  half,  with 
an  agreement,  that,  in  case  of  its  being  lost  within  the  term  of  the 
charter-party,  the  charterer,  O.,  should  pay  M.,  the  other  part- 
owner,  the  value  of  his  moiety.  He  then  insured  the  schooner  to 
its  full  value  on  his  own  account.  Parsons,  C.  J.:  "By  virtue  of 
this  contract,  O.  had  a  special  property  in  M.'s  moiety,  which  was 
at  his  risk,  and  he  might  indemnify  himself  against  loss  by  causing 
himself  to  be  insured."  ^  This  was  precisely  the  interest  of  an 
insurer  as  to  M.'s  moiety,  on  which  O.,  having  himself  insured  it, 
mio^ht  effect  reinsurance. 

According  to  Lord  Ellenborough's  ruling,  the  other  part-owner 
mio'ht  still  have  insured  his  half  of  the  schooner  on  his  own  ac- 
count.  H.,  the  owner  of  a  ship,  had  chartered  her  to  W.,  who 
covenanted,  that,  if  the  ship  should  be  lost,  he  would  pay  H. 
£3,600.  H.  insured  the  ship  on  his  own  account,  and  it  was  lost. 
It  was  objected  that,  as  W.  was  to  pay  for  the  ship  in  case  of  loss, 
H.  had  no  insurable  interest.  Lord  Ellenborough  :  "  He  was  not 
bound  to  trust  exclusively  to  the  credit  of  W.,  but  might  likewise 
protect  himself  by  insurance."  ^  If  the  agreement  with  W.  ex- 
tended to  the  loss  of  the  ship  by  the  perils  insured  against  in  the 
policy,  this  was  plainly,  in  effect,  a  double  insurance  ;  but,  under 
the  form  of  policy  used  in  England,  this  would  raise  no  objection 
to  the  claim  of  the  assured. 

In  the  United  States  the  terms  of  the  common  form  of  policy 

1  Luccna  v.  Craufurd,  3  B.  &  P.  75 ;  goes  in  1795  under  an  act  of  Pai-lla- 

5  B.  &  P.  2G'J  ;  Craufiinl  v.  Hunter,  mcnt,  preparatory  to  a  declaration  of 

8  T.  R.  ].'( ;  and  see  :!  B.  &  P.  13,  n.  war  against  Holland. 

These  celebrated  cases  arose  on  the  ~  Oliver  v.  Greene,  3  Mass.  R.  133. 

seizure  of  tlie  Dutch  ships  and  car-  3  Ilobbs  v.  Ilannaui,  3  Camp.  93. 


SECT.  XI.]  INTEREST   IN   FEEIGIIT.  183 

exclude  double  insurance,  and  the  owner  would,  it  seems,  liave  an 
interest  for  his  policy  against  the  same  perils  that  are  assumed  by 
the  charterer  only  to  the  amount  of  the  excess  of  his  insurable 
interest,  if  any,  over  the  amount  for  which  the  charterer  is  liable 
in  case  of  loss.  But  in  respect  of  other  perils,  if  any,  he  still  has 
an  insurable  interest  to  the  full  value  of  the  ship. 

326.  An  agreement  by  the  charterer  to  insure  the  ship,  has 
been  held  to  give  him  an  insurable  interest,  to  the  same  effect  as 
an  agreement  to  pay  for  her  if  lost.  The  court  said:  "The 
assured  must  have  a  bona  fide  interest,  but  that  interest  may  exist 
without  a  legal  title  to  the  property."  ^ 

SECTION    XI.       INTEREST    IN    FREIGHT. 

327.  "Freight,"  in  the  common  acceptation  of  the  term,  is 
either  the  amount  paid  by  the  hirer  of  the  ship  to  the  owner  for 
the  use  of  it,  or  the  amount  paid  to  the  ship-owner  for  the  trans- 
portation of  goods.-  The  term  is  also  used  to  signify  the  cargo. 
In  insurance,  the  term  '^freight,"  signifes  the  earnings  or  profit 
derived  by  the  ship-owner  or  the  hirer  of  the  ship  from  the  use 
of  it  himself,  or  by  letting  it  *to  others  to  be  used,  or  by  carrying 
goods  for  others. 

328.  In  regard  to  the  commencement  of  this  interest,  it  is  a 
general  rule  that  it  commences  not  only  by  the  vessel's  sailing  with 
the  cargo  on  board,  but  also  ivhen  the  oivner,  or  hirer,  having 
goods  ready  to  ship,  or  a  contract  with  another  person  for  freight, 
has  commenced  the  voyage  or  incurred  expenses  and  taJceri  steps 
towards  earning  the  freight.^ 

329.  The  ship  must  be  ready,  and  something  must  have  been 
done,  or  expenses  must  have  been  incurred,  towards  earning 
freight ;  otherwise  the  interest  has  not  accrued,  as  where  the  ship 
was  lost  while  careenine.^ 


1  Bartlett  v. Walter,  13  Mass.  R.  26  7.        3  See  cases  infra. 

2  Falconer's  Mar.  Diet.;  Hosmer,  J.,        4  Tonge  v.  AVatts,  2  Str.  1251 ;  and 
in  Riley  v.  Hartford  Ins.  Co.,  2  Conn,  see  cases  infra. 

E.  373. 


184  INSURABLE   INTEREST.  -         [cHAP.  III. 

330.  As  long  as  the  destination  of  the  ship  on  the  voyage  for 
which  the  freight  is  insured  is  contingent,  the  insurable  interest 
in  freight  for  that  voyage  does  not  accrue. 

Thus,  in  case  of  a  policy  on  freight  from  Gibraltar  to  Bour- 
deaux,  and  thence  to  Pliiladelphia,  the  ship  sailed  from  Gibraltar 
for  Bourdeaux  with  twenty  thousand  dollars  in  specie  on  board, 
the  master  being  ordered  to  purchase  a  cargo  of  brandy,  in  case  of 
prices  being  at  a  certain  rate,  otherwise  to  take  a  cargo  on  freight, 
if  it  could  be  procured,  or  to  proceed  to  Russia  for  a  load  of  iron 
and  hemp.  The  ship  was  wrecked  on  the  passage  to  Bourdeaux. 
It  was  held,  that  the  interest  in  the  freight  from  Bourdeaux  to 
Philadelphia  had  not  accrued  at  the  time  of  the  loss.^  It  may 
have  been  a  mere  seeking  voyage,  and  the  master  might  not  have 
been  able  to  obtain  brandy  within  his  specified  limits,  or  other 
cargo  on  freight,  on  arriving  at  Bourdeaux. 

331.  So  long  as  no  contract  for  freight  is  made,  and  no  cargo 
is  ready,  and  no  freight  is  procurahle,  no  interest  in  freight  has 
accrued.'^ 

332.  A  contract  for  freight  gives  an  insurable  interest,  as  soon 
as  the  ship  is  ready  to  take  it. 

Insurance  being  effected  on  the  freight  of  a  ship  chartered  to  go 
to  TenerifFe,  and  there  take  a  cargo  for  the  West  Indies,  and  lost 
on  the  voyage  to  Tenerifte,  before  the  cargo  was  taken  on  board 
under  the  charter-party,  it  was  objected,  that  the  insurable  interest 
had  not  commenced  at  the  time  of  the  loss.  It  was,  however,  held 
that  it  had  commenced,  and  Lord  Kenyon  said  :  "  It  now  seems 
admitted,  that  if  the  contract  had  its  inception,  if  any  thing  were 
done  under  it  by  the  assured,  his  right  to  freight  commenced."^ 

An  open  policy  was  made  on  the  freight  of  the  ship  Marquis  of 
Lansdow  ne,  at  and  from  Dominica  to  London,  the  owner  of  which 
had  a  charter-party  for  a  full  freight  outward  and  homeward,  or 
for  dead  freight  if  a  cargo  should  not  be  supplied  ;  and  while  the 
ship  lay  at  Dominica,  ready  to  take  on  board   the  cargo,  it  was 


1  Adams  r.  I'eim.  Ins.  Co.,  1  llawle,         3  Thomiison  v.  Taylor,  6  T.  R.  478. 
107.  See   also   Mackenzie   v.   Shedden,  2 

2  S.  C.  Cami).  431. 


SECT.  XI.]  INTEREST   IN   FREIGHT.  185 

captured.  Lord  Ellenborough  said  :  "  The  existence  of  the  char- 
ter-party, giving  an  entirety  to  the  contract  of  freight,  was  deci- 
sive, the  voyage  having  once  commenced."  ^ 

In  the  case  of  insurance  on  freight  and  passage-money,  from 
India  to  Europe,  a  contract  for  the  freight  of  godds  and  the  pas- 
sages of  forty  invalids  had  been  made,  and  the  ship  had  been 
altered  for  the  accommodation  of  the  passengers,  and  a  greater 
part  of  the  goods  had  been  taken  on  board,  when  the  ship  was 
lost ;  it  was  held,  that  the  owner  had  an  interest  in  the  whole 
freight  and  passage-money  at  the  time  of  the  loss.^ 

In  case  of  the  insurance  on  the  freight  of  the  ship  Hope,  at  and 
from  Madras  to  London,  the  Hope  arrived  in  Madras  Roads  on 
the  30th  of  November,  1S27,  from  which  time  to  the  5th  of  De- 
cember the  crew  were  employed  in  discharging  the  outward  cargo, 
and  on  the  next  day  the  ship  was  lost  by  the  perils  of  the  seas. 
No  part  of  the  homeward  cargo  had  been  shipped,  but  the  owners 
had  some  goods  ready  to  ship,  and  contracts  for  shipments  by 
others  ;  and  it  was  adjudged  that  the  interest  in  freight  had  com- 
menced to  the  amount  so  ready  and  contracted  by  valid  contracts. 
Lord  Tenterden  remarked,  that,  "to  recover  on  a  policy  on  freight, 
the  assured  must  prove,  that,  but  for  the  intervention  of  the  perils 
insured  against,  some  freight  would  have  been  earned,  either  by 
showing  that  some  goods  were  put  on  board,  or  that  there  was 
some  contract  for  doing  so."  ^ 

No  particular  form  of  contract  for  freight  is  requisite.  It  may 
be  under  seal,  or  merely  in  writing,  or  verbal.  It  is  enough  that 
it  is  a  valid  contract."* 

333.  The  owner  having  a  specific  cargo  ready  to  put  on  hoard, 
and  his  preparations  made,  and  his  ship  ready  to  proceed  on  the 
voyage,  his  insurable  interest  in  freight  has  accrued,  so  that  a 
policy  upon  it  will  attach. 

1  Ilorncastle  v.  Stuart,  7  East,  400.  v.  Vaux,  3  Camp.  437  ;  and  Hall  v. 

2  Truscott  V.  Christie,  2  Brod.  &  Brown,  2  Dow,  3G  7.  See  also  David- 
Bing.  320  ;  5  Moore,  33.  son  v.  Willasey,  1 M.  &  S.  313 ;  Living- 

3  Flint  V.  Flemyng,  1  B.  &  Ad.  45  ;  ston  v.  Columbian  Ins.  Co.,  3  Johns.  49. 
1  L.  &  W.  257.  See  also  Williamson  ^  Patrick  v.  Eames,  3  Camp.  441, 
V.  Inncs,  8  Bing.  81,  n. ;  and  Inglis  See  Sellar  r.  M'Vicar,  4  B.  &  P.  23. 

16* 


186  INSURABLE   INTEREST.  [CUAP.  III. 

Where  the  owner  of  a  ship,  of  which  the  freight  was  insured  at 
and  from  the  Coromandel  Coast,  had  purchased  the  cargo,  which 
was  about  seven  miles  from  the  port,  and  the  ship  was  lost  in 
coming  out  of  the  dock  in  a  state  of  repair  ready  for  taking  the 
cargo,  the  interest  in  the  freight  was  held  to  have  commenced. ^ 

Insurance  being  made  on  the  freight  of  the  ship  Etheta  from 
New  York  to  Sisal,  or  some  other  port  in  the  province  of  Yuca- 
tan, and  back,  "carried  or  not  carried,"  the  ship,  after  taking  in  a 
part  of  her  cargo  at  Sisal,  was  driven  on  shore  and  lost.  The  rest 
of  the  cargo  had  been  purchased  and  the  export  duty  paid,  and  it 
was  ready  to  be  shipped,  and  would  have  been  so,  but  for  the  im- 
favorable  weather,  when  the  ship  was  lost.  The  judges  say  :  "  As 
the  freight  was  valued  at  the  sum  insured,  'carried  or  not  carried,' 
the  assured  is  entitled  to  recover  as  for  a  total  loss,  notwithstand- 
ing a  full  cargo  was  not  on  board."  ^  It  would,  however,  have 
been  covered  under  a  policy  "on  freight"  simply. 

It  was  held,  where  the  freight  was  valued  at  £1,500,  and  goods 
had  been  put  on  board,  of  which  the  freight  would  have  been 
£500,  the  rest  of  the  cargo  being  ready  to  be  shipped,  when  the 
vessel  was  driven  from  her  moorings  and  lost,  that  the  insurable 
interest  in  the  whole  freight  had  accrued,  and  the  assured  was 
entitled  to  the  whole  sum  insured."^ 

Under  a  policy  on  freight,  at  and  from  the  island  of  Grenada  to 
London,  the  ship  discharged  her  outward  and  took  in  her  home- 
ward cargo,  at  different  ports  of  the  island,  there  being  but  one 
custom-house  in  the  island.  Mr.  Justice  Holroyd  said,  that  the 
risk  under  the  iiolicy  on  the  homeward  freight  had  begun  to  take 
effect  as  soon  as  the  ship  had  been  twenty-four  hours  in  safety  at 
Grenada.  In  this  case,  however,  the  ship,  at  the  time  of  the  loss, 
was  at  that  port  of  the  island  at  which  the  loading  was  to  be  com- 
pleted.'* 

1  Devcaux  t'.  J'Anson,5  Bing.  N.  C.  3  JMontgomery  v.  Eggington,  3  T. 
519.  R.  3G2. 

2  De  Longucmerc  v.  The  Phoenix        4  'Warre  v.  IMiller,  7  D.  &  R.  1  ;  4 
In«.  Co.,  10  Johns.  127;    The  same  B.  &  C.  538;  1  C.  &  P.  237. 
Plaintiir  v.  Tlie  New  York  Fire  Ins. 

Co.,  10  id.  201. 


SECT.  XI.]  INTEREST   IN   FREIGHT.  187 

But  the  interest  in  freight  will  commence  only  upon  the  freight 
of  the  cargo  shipped  or  ready  to  be  so,  or  the  freight  contracted  for. 

The  freight  of  tiie  ship  Cheswick,  at  and  from  any  ports  in 
Hayti  to  Liverpool,  being  insured  in  a  valued  policy,  the  ship  was 
lost  by  the  perils  of  the  seas,  when  she  had  discharged  a  part  of 
her  outward  cargo,  and  taken  in  fifty-five  bales  of  cotton  of  her 
homeward  cargo,  at  Jacquemel,  and  was  proceeding  thence  to 
Aux  Cayes,  to  discharge  the  rest  of  her  outward,  and  take  in  the 
remainder  of  her  homeward  cargo. 

Upon  these  facts,  Lord  Ellenborough  said  :  "  In  every  action 
on  such  a  policy,  evidence  is  given,  either  that  goods  were  put  on 
board  from  the  carriage  of  which  freight  would  result,  or  that  there 
was  some  contract  under  which  the  owner,  if  the  voyage  were  not 
stopped  by  the  perils  insured  against,  would  have  been  entitled  to 
freight."  The  owner  had  no  charter-party  or  other  contract  for 
freight,  but  goods  were  on  board,  sufficient  to  purchase  the  re- 
mainder of  the  homeward  cargo,  that  were  saved  and  afterwards 
bartered  for  goods,  which  would  have  completed  the  homeward 
cargo.  It  was  decided,  that  the  assured  should  recover  only  the 
freight  of  the  fifty -five  bales  of  cotton. ^ 

The  freight  of  the  ship  Jane  had  been  insured  at  and  from  the 
Cape  de  Verd  Islands  to  London.  She  had  taken  on  board  one 
hundred  and  fifty  bags  of  orchella-weed,  which  was  only  a  part  of 
a  cargo,  at  St.  Nicholas,  where  she  was  wrecked.  Lord  Ellen- 
borough  instructed  the  jury,  that  an  insurable  interest  in  only  the 
one  hundred  and  fifty  bags  on  board  had  accrued  at  the  time  of 
the  loss.2 

Mr.  Justice  Kent  remarks,  that  an  "inchoate  right  to  freio-ht," 
constitutes  an  insurable  interest,^  according  to  what  was  said  by 
Mr.  Justice  Eyre:  "If  the  goods  be  so  situated  as  to  create  a 
well-grounded  expectation  of  freight  being  realized,  freight  is  insur- 
able."* 


1  Forbes  17.  Aspinwall,  13  East,  323.  See   also   Moses   v.   Pratt,  4   Camp. 
See  also  Forbes  v.  Cowie,  1  Camp.  297. 

520,  3  Davy  v.  Hallett,  3  Caines,  16. 

2  Patrick  v.  Fames,  3  Camp.  441.        4  Curling  v.  Long,  1  B.  &  P.  636. 


188  INSURABLE   INTEREST.  [CIIAP.  III. 

If  tlie  expression,  "the  goods,"  has  reference  to  a  specific  cargo, 
the  proposition  is  in  strict  accordance  to  the  jurisprudence  on  the 
subject.  But  the  courts  do  not  appear  to  have  permitted  the 
insured  ship-owner  to  go  into  evidence  that  he  would,  in  all  proba- 
bility or  certainty,  have  obtained  a  cargo  of  his  own  or  freight  of  the 
goods  of  others,  at  the  proposed  port  of  loading,  had  not  his  vessel 
been  lost  on  its  way  thither  ;  though,  if  the  phraseology  of  Mr. 
Justice  Eyre  be  accepted  in  its  broadest  sense,  it  will  favor  the 
admission  of  such  evidence.  The  courts  hesitate  to  enter  upon 
such  indefinite  testimony ;  though  there  seems,  in  fact,  to  be  as 
valid  and  sufficient  an  insurable  interest  in  freight,  where  the  ves- 
sel is  going  to  a  port  merely  to  take  a  cargo,  or  part  of  one,  on 
the  owner's  account,  which  he  has  funds  on  board,  or  unquestion- 
able credit  at  the  place,  to  procure,  and  which  can,  in  fact,  be 
there  procured,  as  when  he  has  a  contract  for  freight  thence.  And 
he  might,  no  doubt,  so  describe  his  interest  in  freight  in  the  policy 
as  to  make  the  insurance  valid. 

But  a  general  policy  on  freight  has  been  held  in  Connecticut 
not  to  attach  in  such  case  ;  even  where  the  owner  has  funds  on 
board  for  the  purchase  of  a  cargo,  or  part  of  one,  which  the  ship 
is  going  to  a  port  for  the  purpose  of  procuring. 

"The  freight  of  goods  laden  or  to  be  laden,"  being  insured,  a 
part  of  a  cargo  was  taken  at  Gibraltar,  and  the  ship  was  proceed- 
ing towards  the  Cape  de  Verd  Islands,  with  funds  to  purchase 
salt  there  to  make  up  the  cargo,  when  she  was  lost.  It  was  held, 
that  the  insurable  interest  had  commenced  only  in  respect  of  the 
goods  sliipped  at  Gibraltar.^ 

That  the  rule,  as  laid  down  by  the  judicial  authorities,  will  ope- 
rate very  inequitably  in  some  cases,  is  shown  in  one  very  early 
decided  in  Boston  by  referees,  whose  authority  upon  this  question 
would  compare  not  disadvantageously  with  that  of  the  judicial  tri- 
bunals. The  case  was  that  of  the  ship  Eclipse,  of  Salem,  which 
was  piratically  plundered  of  specie  on  the  western  coast  of  Suma- 
tra, in  183G,  having  a  part  of  her  homeward  cargo  of  pepper  on 
board,  and  a  suflicient  supply  of  specie  to  purchase  the  remainder, 

1  Riley  V.  Hartford  Ins.  Co.,  2  Conn.  11.  368. 


SECT.  XI.]  INTEREST   IN   FREIGHT.  189 

there  being  at  the  time  a  sufficient  supply  of  pepper  on  the  coast. 
The  freight  for  the  voyage  round  was  insured.  If  no  insurable 
interest  in  the  freight  of  the  homeward  cargo  accrued  until  the 
shipment  or  purchase  of  the  pepper,  and  only  to  the  extent  of 
such  shipment  or  purchase,  the  policy  did  not  afford  the  indem- 
nity evidently  contemplated  by  the  parties  ;  for  it  appeared  by  the 
policy,  that  the  outward  shipment  was  to  consist  of  specie,  the 
freight  of  which  separately  would  have  been  but  a  trifle,  and  yet 
one  entire  full  premium  was  given  on  the  amount  of  freight  for  the 
whole  voyage  out  and  home,  sufficient  to  indemnify  the  assured  if 
the  same  amount  of  freight  were  considered  to  be  at  risk  out  and 
home.  In  consequence  of  the  piracy,  the  ship  returned  with  only 
a  part  of  a  cargo,  and  the  assured  claimed  indemnity  for  his  loss 
of  freight.  There  were  other  questions  between  the  parties,  and 
the  objection  to  this  claim  was  not  very  strongly  urged  by  the 
underwriters.  Tlie  referees  were  decidedly  in  favor  of  allowing 
the  claim  under  these  circumstances.^ 

The  equity  and  propriety  of  this  award  are  obvious  in  respect 
to  a  voyage  conducted  as  East  India  voyages  usually  were  at  that 
time,  when  ships  usually  went  out  in  ballast,  with  specie  for  the 
purchase  of  a  homeward  cargo  ;  which  was  a  more  reliable  secu- 
rity for  a  homeward  freight  than  any  charter-party  could  be.  It 
may  be  said  that  good  rules  will  sometimes  work  inequitably ;  but 
it  is  certainly  desirable  to  adopt  such  as  will  be  least  liable  to 
work  so.  I  therefore  venture  to  suggest  a  modification  of  the  ex- 
pression of  the  doctrine  upon  this  subject ;  namely,  that, 

Where  the  vessel  has  sailed  for  an  intended  port  of  loading, 
for  the  mere  purpose  of  there  talking  a  cargo  for  a  subsequent 
passage,  to  procure  which  the  oivner  has  funds  on  board,  or  reli- 
able credit,  and  it  appears  that  such  a  cargo  can  undoubtedly  be 
there  procured,  the  interest  in  freight,  for  the  entire  voyage 
homeward,  has  accrued. 

I  do  not  perceive  that  such  a  rule  would  be  impracticably  inde- 
finite and  uncertain  in  its  application,  and  it  is  within  a  liberal 
construction  of  the  terms  in  which  the  doctrine  on  this  question  is 

1  Peabody  v.  Marine  Ins.  Co.  of  Salem,  1839,  (MS.) 


190  INSURABLE   INTEREST.  [CHAP.  III. 

laid  down  by  Mr.  Justice  Eyre,i  and  cited  by  Mr.  Justice  Kent,'-^ 
and  in  close  analogy  to  the  jurisprudence  next  to  be  referred  to. 

334.  A  charter-party  being  made  for  successive  passages,  at 
an  entire  freight,  the  interest  in  the  ivhole  freight  commences  on 
the  first  passage,  though  the  ship  may  sail  in  ballast  merely  on 
that  passage,  provided  it  is  let  by  the  assured,  or  he  has  a  cargo 
ready  at  the  intermediate  port. 

The  owner  of  the  ship  Olive  Branch  let  her  by  charter-party 
for  a  voyage  from  Bourdeaux  to  New  York,  Buenos  Ayres,  and 
back  to  Europe,  for  the  entire  sum  of  eighteen  thousand  dollars. 
The  ship  had  arrived  at  New  York  in  the  prosecution  of  the  voy- 
age, where  she  was  detained  by  an  embargo,  after  her  cargo  had 
been  discharged,  and  before  the  cargo  for  Buenos  Ayres  was  put 
on  board.  Chief  Justice  Kent,  giving  the  opinion  of  the  court, 
said  :  "  The  risk  had  attached  on  the  whole  freight.  The  charter- 
party  gave  an  entirely  to  the  contract  of  freight."  ^ 

In  a  case  upon  a  policy  on  freight  ''from  New  York  to  Wil- 
mington, and  thence  to  Barbadoes,"  the  assured  had  bought  a 
cargo,  which  was  to  be  taken  on  board  at  Wilmington  had  not  the 
vessel  been  lost  on  the  way  thither.  Mr.  Justice  Washington  held, 
that  the  interest  in  the  whole  freight  commenced  at  the  time  of  the 
vessel's  sailing  from  New  York.^ 

335.  A  vessel  being  chartered  from  A.  to  B.,  the  interest  in 
the  freight  commences  under  the  charter-party  on  the  vessel's 
sailing  for  A.,  either  in  ballast  or  with  a  small  quantity  only  o/ 
goods,  for  B. 

That  is,  if  the  prior  passage  is  merely  preliminary  to  the  one 
for  which  ihe  vessel  is  chartered,  having  no  cargo  deliverable  at 
A.  or  any  intermediate  port,  and  the  object  in  the  passage  to  A. 
is  merely  to  prosecute  the  voyage  thence  to  B.,  the  interest  in  the 
whole  freight  under  the  charter-party  accrues  on  the  commence- 
ment of  ihc  first  passage. 


1  Curling  v.  Loiif,',  1  B.  &  P.  GOG.  ^  Harfc  v.  Delaware  Ins.  Co.,  2  Wash. 

2  Ut  supra.  C.  C.  R.  3-lG. 

3  Livingston  r.  Culiimliian  Ins.  Co., 
3  Johns.  40. 


SECT.  XI.]  INTEREST   IN   FREIGnX.  191 

A  ship  cliartered  at  New  York  to  take  a  cargo  of  timber,  then 
ready  to  be  shipped,  from  St.  John's  River,  in  Florida,  to  Charles- 
town,  was  lost  on  her  passage  to  St.  John's.  The  interest  in  the 
whole  freight  was  held  to  have  accrued.^ 

Under  a  policy  by  the  owner  upon  "freight  on  board,"  at  and 
from  Cadiz  to  a  port  in  Sicily,  the  vessel,  being  let  on  charter  for 
an  entire  sum  from  Palermo  to  the  United  States,  was  lost  in  the 
Bay  of  Cadiz  on  her  passage  to  Sicily,  having  on  board  only  a 
small  quantity  of  goods,  and  those  shipped  for  the  United  States. 
The  interest  in  the  whole  voyage  under  the  charter-party  was  held, 
in  Massachusetts,  to  have  commenced,  to  the  amount  of  the  whole 
stipulated  charter-money.^ 

336.  The  rules  above  laid  doion  relative  to  the  commencement 
of  the  interest  of  the  owner  in  the  freight,  are  applicahle  to  a  char- 
terer, who  has  hired  the  whole  or  any  part  of  the  ship,  as  far  as 
the  earning  of  freight  is  thus  put  at  his  risk  ;  he  being  thus  far  in 
the  place  of  owner.^ 

The  charter-party  often  leaves  some  perils  at  the  owner's  risk, 
and  puts  others  at  the  risk  of  the  charterer,  in  which  case  each 
will  have  an  insurable  interest  in  freight  against  the  perils  that  are 
at  his  risk.  If,  for  instance,  the  charterer  assumes  the  peril  of  cap- 
ture, and  other  perils  of  the  seas  remain  with  the  owner,  each  may 
insure  freight  to  its  full  amount  against  the  perils  at  his  risk:^ 

As  in  case  of  the  charterer's  taking  the  risk  of  the  Russian 
government's  not  permitting  the  cargo  to  be  discharged.^ 

337.  If  the  charterer,  by  a  sub-charter,  or  by  carrying  goods, 
will,  the  perils  of  the  voyage  excepted,  realize  earnings  exceeding 
the  amount  of  the  charter-money  which  he  has  agreed  to  pay  to 
the  owner  for  the  use  of  the  ship,  he  has  an  insurable  interest  in 
the  excess  against  all  perils. 

And  it  will  make  no  difference  whether  the  charterer  transports 


1  Adams   v.  Warren  Ins.  Co.,  22  4  See  Sanson  v.  Ball,  4  Dall,  459 ; 
Pick.  163.  Mackenzie  v.  Shedden,  2  Camp.  431 ; 

2  Robinson  v.  The  Manufacturers'  Clark  v.  Ocean  Ins.  Co.,  IG  Pick.  289. 
Ins.  Co.,  1  Mete.  143.  5  Puller  v.  Stanifortb,  11  East,  232 ; 

3  Mestaer  v.  Gillespie,  11  Ves.  621.  Puller  v.  Halliday,  12  East,  494. 


192  INSURABLE   INTEREST.  [CIIAP.  III. 

his  own  cargo,  or  takes  goods  on  freight,  or  makes  up  the  cargo 
in  both  of  those  ways.  If  the  earnings  to  be  realized  exceed  the 
charter-money  to  be  paid,  he  undoubtedly  has  an  insurable  inte- 
rest to  the  amount  of  the  excess.  But  if  there  is  no  such  excess, 
then  the  charterer  has  no  insurable  interest  against  the  same  perils 
that  are  at  the  risk  of  the  owner  by  the  charter-party.^ 

338.  An  advance  made  on  the  charter-party  hy  the  charterer, 
to  defray  the  expenses  of  the  ship  on  the  voyage,  or  for  any  other 
purpose,  under  a  stipulation  that  the  same  is  to  be  at  his  risk,  and 
the  owner  not  chargeable  therewith  in  any  event,  gives  the  char- 
terer an  insurahle  interest  in  freight,  against  all  risks,  to  the 
amount  so  advanced.^  In  order  to  recover  the  loss,  the  char- 
terer must  jirove  that  the  advance  was  actually  made  ;  the  proof 
of  the  agreement  to  make  it  will  not  be  sufficient  under  his  policy 
on  freight.^ 

But  if  the  owner  is  absolutely  chargeable  with  the  advance,  and 
liable  for  the  same  as  a  debt,  independent  of  the  issue  of  the  voy- 
age, then  no  insurable  interest  accrues  to  the  charterer  therefrom, 
any  more  than  from  any  other  demand  he  may  have  against  the 
owner  ;'^  except  that,  if  the  charterer,  by  the  construction  of  the 
charter-party,  is  entitled  to  a  lien  on  the  stipulated  charter-money, 
and  has  a  right  to  retain  the  same,  to  the  amount  advanced,  he 
has  an  insurable  interest  on  account  of  such  lien  to  such  amount, 
just  as  a  lender  on  mortgage  or  bottomry,  or  any  other  party  hav- 
ing a  lien,  has  such  an  interest. 

339.  If  a  person  sells  a  ship,  reserving  the  use  of  it  for  a  cer- 
tain voyage  or  time,  he  stands  in  the  place  of  a  charterer,  and 
has  a  similar  insurable  interest.^ 


1  IMellcnu.Nationallns.  Co.,  1  Hall's  2  Camp.  023;  Robbing  v.  New  York 

N.  Y.  City  Sup.  Ct.  R.  452.     It  was  Ins.  Co.,  1  Hall's  N.  Y.  City  Super.  Ct. 

decided  In  this  case,  that  the  charterer  R.  325. 

could  not  insure  liis  interest  undeT  the  ^  Id.  ib. 

dc8crii)tion  of  "iVciglit ;"  but  this  posi-  4  De  Silvalc  v.  Kendall,  3  M.  &  S. 

tion  is,  at  least,  questionable.    Sec  in-  37 ;  Mansfield  v.  Maitland,  4  B.  &  Aid. 

fra,  No.  480.  585  ;  Winter  v.  Ilaldimand,  2  B.  &  Ad. 

'■i  Mansfield  v.  :M:iitland,  1  15.  &  Aid.  Gil)  ;  Saunders  v.  Drew,  3  id.  445, 

582;  AVilson  r.  Royal  K.\ch.  Ass.  Co.,  5  See  Riley  t'.Delafield,  7  Johns.  522. 


SECT.  XI.]  INTEREST  IN   FREIGHT.  193 

340.  The  mere  advancing  of  the  freight  of  goods  will  not  give 
the  party  mahing  the  advance  any  insurable  interest  in  the  freight 
so  advanced,  in  case  of  his  having  a  right  to  recover  it  back,  if 
the  goods  on  which  the  freight  is  advanced  shall  not  be  delivered 
according  to  the  bills  of  lading. 

And  it  has  been  held,  that  where  the  freight  is  advanced  with- 
out any  other  conditions  and  stipulations  than  those  contained  in  an 
ordinary  bill  of  lading,  in  case  of  the  delivery  of  the  goods  at  the 
port  of  destination  being  prevented,  so  that  no  freight  could  have 
been  recovered  of  the  shipper  if  none  had  been  advanced,  he  may 
recover  back  the  amount  advanced.^ 

So  it  has  been  ruled  that  money  lent  to  the  master,  payable  out 
of  freight,  gives  no  insurable  interest  in  freight  ;^  that  is,  supposing 
the  master  does  not  undertake  to  assign  or  pledge  the  freight,  or, 
if  he  so  undertakes,  without  authority  from  the  nature  of  the  loan 
contracted,  or  otherwise,  to  pledge  it. 

341.  The  freight  of  a  part  of  a  voyage  may  be  insured. 

A  ship  sailed  from  St.  Ubes  for  Gottenburg,  but  was  to  put  into 
Portsmouth  for  convoy.  The  freight  was  insured  from  St.  Ubes 
to  Portsmouth.  Lord  Ellenborough  said:  "There  is  no  doubt 
that  a  party  may  insure  his  ship  or  goods  for  a  part  of  a  voyage  ; 
I  cannot  conceive  why  he  may  not  insure  freight  in  the  same  man- 
ner. There  is  no  case  which  intimates  the  contrary,  except  Mur- 
dock  V.  Potts,^  which  is  inconsistent  with  all  the  other  cases."  '^ 

342.  Jf  the  owner  of  the  ship  advances  money  for  wages  or 
charges,  he  has  an  insurable  interest  in  co7isequence ;  ^  and  the 
same  holds  true  of  the  charterer.^ 


1  Griggs  V.  Austin,  3  Pick.  20.  5  Salvadoru.Hopkins,  SBiirr.  1707; 

2  Wilson  V.  Royal  Exc.  Ass.  Co.,  2  Bell  v.  Bell,  2  Camp.  479.     Though 
Camp.  623.  Siffken  v.  Allnutt,  1  M.  &  S.  39,  seems 

3  Park,  451.  to  be  contrary;  but  the  facts  do  not 

4  Taylor  v.  Wilson,  15  East,  324.  appear  distinctly. 

See  also  Gordon  v.  American  Ins.  Co.  6  Sanson  v.  Ball,  4  Dall.  459. 
ofN.  Y.,  4  Denio,  360. 


VOL.    I.  17 


194  INSURABLE   INTEREST.  [CHAP.  III. 


SECTION    XII.       INTEREST    IN    FISHING    VOYAGES. 

343.  In  whaling  voyages  two  subjects  are  distinctly  specified, 
which  are  not  so  in  commercial  marine  insurance  ;  namely,  "  out- 
fits," consisting  of  the  apparatus  for  taking  whales,  and  trying  out 
the  oil,  casks,  stores  of  provision  and  clothing  for  the  men,  &c., 
and  "takings,"  or  "catchings."  Part  of  the  former  and  all  of  the 
latter  of  these  interests  constitute  cargo. 

One  of  these  two  interests,  namely,  the  outfits,  will  evidently  be 
diminishing  during  the  whole  voyage;  and  a  part  of  it  will,  during 
a  long  voyage,  as  such  usually  are,  be  consumed  and  replaced 
from  time  to  time. 

The  "catchings"  accrue  and  accumulate  during  the  voyage, 
according  to  the  success  of  the  adventure  ;  and  the  interest  in 
these  is  divided  between  the  owners  on  one  part,  and  the  officers 
and  crew  on  the  other,  each  man  on  board  being  entitleil  to  a  cer- 
tain share,  which,  however,  is  pledged  to  the  owners  for  whatever 
charges  may  stand  against  him  for  articles  supplied  to  him,  with 
which,  by  the  rules  and  customs  of  this  fishery,  he  is  chargeable. 

Again,  the  men  usually  give  orders  for  the  supply  of  their  fami- 
lies at  home,  during  their  absence  on  the  voyage,  for  which  they 
not  unfrequently  pledge  their  shares  to  the  parties  who  furnish 
such  supplies,  whether  owners  of  the  vessel  or  others. 

The  various  insurable  interests  in  the  "catchings"  are,  there- 
fore, somewhat  complicated,  but  still  not  so  as  to  present  any  great 
embarrassment  in  ascertaining  the  proportions  of  interest,  or  adjust- 
ing losses. 

It  is  usual  with  the  owners  to  make  insurance  upon  the  ship 
and  outfits,  and  at  the  same  time  to  provide  that  a  certain  propor- 
tion, commonly  one  fourth,  of  the  catchings  at  any  time  at  risk, 
shall  "replace"  the  outfits  consumed.^ 

Other  forms  of  policy  have  a  provision  that,  so  soon  as  the 
catchings  shall  amount  to  a  certain  specified  sum,  according  to  the 
rate  of  valuation  of  the  oil  and  whalebone,  agreed  on  in  the  policy, 

^  New  Bedford  form. 


SECT.  XIII.]  INTEREST  IN  FIRE   INSURANCE.  195 

a  certain  amount  of  the  insurance  shall  be  applied  to  this  interest 
exclusively.^ 

344.  The  interest  of  the  officers  and  men  is  insured  under  the 
description  of  "share"  in  whaling  voyages,  and  "lay"  in  cod- 
fishing  and  mackerel-fishing. 

345.  In  cod-fishing  voyages,  as  they  are  conducted  in  the 
United  States,  the  outfits  consist  of  the  great  and  the  small  "gene- 
ral." The  "great  general"  is  supplied  wholly  by  the  owners,  and 
includes  the  salt  for  curing  the  fish,  the  bate,  premium  of  insur- 
ance, and  some  other  small  articles  and  expenses.  The  "small 
general"  is  supplied  by  each  man  for  himself,  and  consists  mostly 
of  the  provisions  and  fuel.  The  insurable  interest  of  the  owners 
accordingly  consists  of  their  interest  in  the  vessel,  the  "great  gene- 
ral," and  their  proportion  of  the  fare,  or  "stock,"  which  is  cus- 
tomarily one  quarter,  or,  including  the  expense  of  curing  the  fish, 
three  eighths.^  The  interest  of  the  men  in  the  proceeds  of  these 
voyages  is  rarely  insured. 

Voyages  in  mackerel-fishing  are  conducted  in  a  similar  way, 
and  the  interests  of  the  several  parties  are  not  unlike  those  in  a 
cod-fishing  voyage. 

SECTION    XIII.       INTEREST    IN    EIRE    INSURANCE. 

346.  There  is  no  distinction  between  marine  and  fire  policies, 
as  to  the  kind  and  degree  of  interest  necessary  to  constitute  the 

1  New  York  form.  case,  therefore,  if  they  have  such,  is 

2  The  owners  usually  supply  the  that  of  mortgagees.  Anciently,  ves- 
men  with  more  or  less  of  the  "small  sels  employed  in  the  mackerel,  her- 
general,"  and,  as  they  depend  wholly  ring,  and  other  fisheries,  made  a  sort 
upon  the  proceeds  of  the  voyage  for  of  mutual  insurance,  by  agreeing  to 
payment,  it  is  understood,  by  some  share  their  fares.  Laws  of  Oleror, 
persons  conversant  in  this  business,  a.  28 ;  1  Peters's  Adm.  Decisions,  xlvi. 
that  they  have  an  insurable  interest  And  an  agreement  of  the  same  de- 
to  the  amount  of  the  "small  general"  scription  between  two  whaling  ships, 
supplied  by  them,  though  the  price  called  a  "  mateship,"  has  been  held  to 
is  in  fact  legally  and  absolutely  due  be  valid  in  Massachusetts.  Baxter  v. 
from  the  men.     Their  insurable  inte-  Rodman,  8  Pick.  435. 

rest  in  the  shares  of  the  men  in  such 


196  INSURABLE   INTEREST.  [CHAP.  III. 

basis  of  a  policy.     Fire  is,  as  we  have  seen,  one  of  the  risks  ordi- 
narily insured  against  in  marine  pohcies. 

347.  Notwithstanding  a  defect  in  the  conveyance  of  a  building 
in  fee,  the  grantee  has  an  insurable  interest  to  its  full  value,  under 
a  general  description  of  the  subject,  where  the  defect  in  the  con- 
veyance is  amendable  by  proceedings  in  equity.^ 

348.  The  owner  still  retains  his  insurable  interest  in  a  build- 
ing to  its  full  value,  notwithstanding  an  agreement  to  sell  it  for  a 
price  which  the  other  party  is  not  the  less  liable  to  pay  though  it 
be  consumed  by  fire,  if  it  is  part  of  the  agreement  that  the  build- 
ing is  to  be  mortgaged  to  the  vender,  or  retained  by  him,  as  secu- 
rity for  the  purchase-money. 

It  was  so  held  in  a  case  where  the  purchaser  had,  before  the 
building  was  burnt  down,  failed  to  comply  with  his  agreement  to 
complete  the  purchase,  and  make  payment  and  give  security 
within   a  certain  time.^ 

349.  I^  a  tenant  for  life  and  the  remainder-man  join  in  effect- 
ing insurance^  they  ivill  be  pro])ortionally  interested,  and  the  appli- 
cation of  the  proceeds  of  the  policy  in  repairs  will  give  to  each  a 
just  proportion  of  the  benefit  of  the  insurance.^  But  if  the  tenant 
for  life  insures  a  building  without  any  agreement  with  the  remain- 
der-man respecting  the  insurance,  the  latter  has  no  interest  in  the 
policy,  and  the  assured  may  apply  the  proceeds  in  putting  up  a 
new  building  in  place  of  the  one  burnt  down,  or  not,  as  he  may 
choose.^ 


1  Swift  v.  Vermont  Mut.  Fire  Ins.  It  is  laid  down  that  he  may  insure 
Co.,  18  Verm.  11.  303.  and  recover  for  the  full  value  of  the 

2  Fire  &  ^Marine  Ins.  Co.  of  Wheel-  building,  but  this  can  be  only  by  the 
ing  i".  Morrison,  11  Leigh's  Va.  R.  insurers  being  precluded  from  dis- 
355.  The  court  considered  the  as-  puting  the  amount  of  a  loss  equal  to 
Burcd  accountable  to  the  purchaser  the  full  value  of  the  building,  for  the 
for  the  amount  paid  for  the  loss,  on  value  of  his  interest  is  certainly  less 
the  latter  afterwards  completing  the  than  the  value  of  the  building.  Per- 
purchasc.  milting  him  to  recover  for  the  whole 

3  Brough  V.  Iliggins,  2  Grattan's  K.  value  of  it,  in  an  open  policy,  is,  there- 
408.  fore,  to  permit  the  recovery  of  the  full 

4  Ilaxall's  Executors  v.  Shippen,  1  amount  in  an  over-insurance. 
Leigh's  (Va.)  11.  437. 


SECT.  XIV.]  INTEREST  IN   LIVES.  197 

350.  A  husband  having  a  right  to  tenancy  by  courtesy  in  the 
event  of  liis  surviving  his  wife,  has  an  insurable  interest  in  her 
real  estate.^ 

351.  A  judgment-creditor  who  has,  by  virtue  of  his  judgment, 
a  lien  on  the  real  estate  of  his  debtor,  has  an  insurable  interest 
in  such  estate,  and,  having  effected  a  poHcy  upon  it,  may  recover 
for  a  loss  that  takes  place  after  he  has  subsequently  purchased  the 
estate,  at  a  sale  of  it,  on  his  execution.^ 


SECTION    XIV.       INTEREST    IN    LIVES. 

352.  The  insurance  of  the  life  of  a  freeman  was  prohibited 
in  France,^  because  it  is  said  to  be  above  price,  and  is  not  a  sub- 
ject of  commerce,  and  it  is  wrong  to  allow  it  to  be  a  matter  of 
commercial  speculation ;  and  because  such  an  insurance  is  a 
wager,  and  tends  to  instigate  men  to  crimes.^  And  Boulay  Paty 
contends  strenuously  against  such  insurance  on  these  grounds,  and 
insists  on  the  illegality  of  a  license  for  it  to  a  company  by  the  king, 
in  1820.^  It  has,  however,  since  then,  come  much  into  use  in 
that  country  ;  and  is  prevalent  in  other  parts  of  Europe.  Insur- 
ance, whether  upon  lives  or  property,  no  less  than  banking,  bills 
of  exchange,  Stc,  offers  great  facilities  and  temptations  to  imposi- 
tion, frauds,  and  swindling  and  other  crimes.  This  seems,  how- 
ever, rather  to  be  a  reason  for  legal  provision  for  inspection,  and 
regulation  and  restriction,  than  for  absolute  prohibition. 

353.  One  who  is  directly  liable  to  a  loss  by  the  death  of  any 
'person,  has  an  insurable  interest  in  the  life  of  such  person. 

A  creditor  has  an  insurable  interest  in  the  life  of  his  debtor. 
"The  policy,"  says  Lord  Mansfield,  "may  be  considered  a  colla- 


1  Franklin  Ins.  Co.  v.  Drake,  2  B.  trangin's  Poth.  Ins.,  No.  27,  n. ;  Code 
Monroe,  Ky.  R.  51.  de  Com.  a.  334. 

2  Mickles  V.  Rochester  City  Bank,  4  i  Emer.  198,  c.  8,  s.  1, 

11  Paige,  118.  5  Cours  de  Droit  Commercial,  pp. 

3  Ordinance  1681,  Ins.  a.  10;  Es-  446-505,  ed.  Paris,  1823. 

17* 


198  INSURABLE   INTEREST.  [CHAr.  III. 

teral  security  for  the  debt,"  ^  and  therefore  depends  upon  the  same 
principle  as  a  policy  upon  the  interest  of  a  mortgagee. 

Lord  Kenyon  instructed  the  jury,  in  case  of  a  debt  due  from  N. 
to  A.,  and  an  agreement  between  A.  and  M.,  on  a  settlement  of 
accounts,  that  the  debt  should  "remain  to  the  account  of  M.  only," 
that  A.  still  had  an  insurable  interest  in  the  life  of  the  debtor.^  But 
it  does  not  appear  what  interest  A.  could  have. 

354.  This  interest,  like  any  other,  must  he  a  legal  one ;  a  note 
given  for  money  won  at  play,  gives  no  insurable  interest  in  the  life 
of  the  maker,  the  debt  being  illegal,  and  the  note  void.^ 

An  annuitant  has  an  insurable  interest  in  the  life  of  the  grantor 
of  the  annuity.^ 

355.  The  interest  may  be  indirect. 

An  annuitant,  whose  annuity  if  for  the  life  of  another,  has  an 
insurable  interest  in  such  life. 

356.  The  interest  may  be  contingent,  and  subject  to  be  defeated. 
The  holder  of  a  voidable  promissory  note  of  an  infant  has  an 

insurable  interest  in  his  life,  for  he  may  not  avoid  it.^ 

In  regard  to  this,  as  well  as  other  subjects  of  insurance,  an  inte- 
rest contingent  in  itself,  and  that  might  be  defeated,  or  might 
eventually  not  have  been  of  any  value  to  the  assured,  is  still  a 
good  insurable  interest.  A  young  woman  who  "was,  and  had 
been  for  several  years,  supported  and  educated  at  the  expense  of 
her  brother,  who  stood  towards  her  in  loco  parentis,  was  held  to 
have  an  insurable  interest  in  his  life  ;"  and  Parker,  C.  J.,  giving 
the  opinion  of  the  court,  said  :  "A  policy  effected  by  a  child  upon 
the  life  of  a  father,  who  depended  upon  some  fund,  terminable  by 
his  death,  to  support  the  child,  would  never  be  questioned."  *^ 
But  there  should  be  some  pecuniary  interest  to  support  such  a 
policy.' 

1  Stackpolc  V.  Simond,  Park,  648  ;  "^  Glynn  v.  Locke,  3  Drury  &  War- 
Marsh.  772.  ren,  Cb.  R.  11. 

'-2  Aml(,Tson  v.  Edic,  Marsh.    77G;  ^  Dwyer  v.  Edie,  lit  supra. 

Park,  010.  0  Lord  v.  Dall.  12  Mass.  K  115. 

a  Dwycrr.  Edic,  Marsh.  7  70;  Park,  ^  Holtbrd  v.  Kymcr,  10  B.  &.  C. 

C39.  724. 


SECT.  XV.]  INTEREST   IN   DOUBLE   INSURANCE.  199 

357.  Very  few  questions,  says  Mr.  Ellis/  have  arisen  on  the 
subject  of  interest  under  life  policies,  because  the  offices  are  not  in 
the  habit  of  taking  that  objection,  unless  they  are  under  the  neces- 
sity of  resisting  payment  upon  some  other  fair  and  proper  ground, 
as  fraudulent  misrepresentation  and  concealment ;  and,  if  they  are 
driven  to  resist  on  such  ground,  they  can,  in  order  to  make  their 
case  the  stronger,  sometimes  also  object  to  the  want  of  interest, 
when  the  policy  is  open  to  that  objection. 

358.  The  Eno-Hsh  Court  of  Common  Pleas  intimate  a  doubt 
whether  one  can  insure  his  own  life  for  the  benefit  of  another  who 
merely  advances  the  premium.^ 

There  is  ground  for  the  doubt,  whether  the  assured  merely  lends 
his  name  to  another  to  make  a  gaming  policy  upon  his  life.  But 
every  life  policy,  made  by  the  assured  on  his  own  life,  is  made  for 
the  benefit  of  others,  and  if  a  party  so  insures  his  life  bona  fide  for 
the  benefit  of  others,  it  seems  not  to  be  material  whether  he  pays 
the  premium  with  his  own  money,  not  borrowed,  or  borrows  money 
for  the  purpose. 

SECTION  XV.   INTEREST  IN  DOUBLE  INSURANCE. 

359.  Double  insurance,  or,  which  is  the  same,  over-insur- 
ance, is  where  two  or  more  insurances  are  made  in  favor  of  the 
same  assured,  on  the  same  interest  in  the  same  subject,  against  the 
same  risks.^  The  term  "double  insurance"  is  more  applicable  to 
duplicate  insurance  to  the  whole  amount  of  the  interest. 

360.  In  France  over-insurance  is  not  jper mitt ed,  and  in  case  of 
policies  identical  as  to  the  party,  interest,  and  risks,  exceeding  the 
amount  of  the  insurable  interest,  without  fraudulent  intent,  the  first 
underwriters  only  to  the  amount  at  risk  are  liable."*  But  if  the 
insurances  are  all  of  the  same  date,  Boulay  Paty  is  of  opinion  that 
the  underwriters  would  be  liable  pro  rata,  and  the  premiums  for 

1  Page  123  ;  Von  Lindenau  v.  Des-  ^  Irving  v.  Richardson,  1  M.  &  Hob. 
borough,  3  C.  &  P.  353  ;  S.  C,  8  B.  &     153  ;  2  B.  &  Ad.  193. 

C.  586.  4  Code  de  Commercial,  a.  359. 

2  Wainwright  v.  Bland,  1  Mees.  & 
"Wels.  32. 


200  INSURABLE   INTEREST.  [CHAP.  III. 

the  excess  returnable  pro  rata,  with  the  usual  deduction  of  one 
half  per  cent.^  This  rule,  therefore,  leaves  no  interest  for  double 
insurance,  except  in  case  of  simultaneous  policies. 

361.  In  England,  the  different  underivriters  in  over-insurance, 
whether  at  the  same  or  successive  dates,  are  liable  pro  rata  for 
loss,  and  if  the  assured  compels  full  indemnity  from  some  of  the 
underwriters,  they  may  come  upon  the  others  for  pro  rata  reim- 
bursement.^ And  in  the  United  States  the  rule  is  the  same  where 
the  policy  contains  no  clause  to  control  it?  There  is,  therefore, 
in  both  countries,  an  insurable  interest  for  double  insurance  to 
any  amount. 

362.  The  operation  of  the  above  rule  evidently  is,  to  make  the 
insurers  in  double  insurance  mutual  guarantors  for  each  other,  the 
the  risk  of  which  guaranty  to  each  insurer  will  depend  upon  the 
solvency  of  collateral  insurers.  To  remedy  the  inconveniences  of 
the  application  of  the  above  rule,  the  provision  already  mentioned 
was  introduced  into  marine  policies  in  the  United  States,^  making 
only  the  prior  insurers  in  favor  of  the  same  parties,  on  the  same 
interest,  against  the  same  risks,  up  to  the  amount  of  the  value  of 
the  subject,  answerable,  and  exonerating  the  subsequent  insurers 
to  the  amount  of  the  excess  ;  ^  on  which  excess  the  premium  is  to 
be  returned,  deducting  the  half  per  cent,  where  such  deduction  is 
stipulated  for  or  customary. 

363.  Under  the  clause  making  only  the  prior  insurers,  to  the 
amount  of  the  insurable  value  of  the  subject,  liable,  if  the  over- 
insurance  is  made  by  simultaneous  policies,  or  simultaneous  sub- 


1  Cours  (Ic  Droit  Com.,  tit.  dcs  Ass.,  Park,  Ins.  424  ;  Godin  v.  London  Ass. 
8.  20,  tome  4,  pp.  11 G,  117,  118,  ed.  Co.,  1  Burr.  489. 

1823.     So  he  infers  from  a.  1383  of  ^  Craig  v.  Murgatroyd,  4  Yeates, 

the  Code  Civil,  and  a.  349  of  the  Code  ICl ;  Thurston  v.  Koch,  4  Dall.  348, 

dc  Commercial.  and  App.  xxvii. ;  Millaudon  v.  West- 

2  Newley  r.  Heed,  1  W.  Bl.  41 G  ;  crn  Mar.  &  Fire  Ins.  Co.,  9  La.  R.  27. 
Rogers  V.  Davis,  Bcawes,  Lex.  Merc.  See  also,  to  the  same  effect,  Casa  Reg. 
242,  cited  Marsh.  Ins.,  2d  London  and  Disc.  1,  No.  91. 

Condy's  Am.  ed.  147,  also  Bark,  423  ;  4  Supra,  No.  32. 

and  Davis  v.  Cildart,  Bcawes,  Lex.  5  5  Serg.  &  R.  475.     See  infra,  c. 

Merc.  242;  S.  C,  Marsh.,  ut  supra;  14,  s.  3. 


SECT.  XV.]  INTEREST  IN   DOUBLE   INSURANCE.  201 

scriptions   to   the  same   policy,  all  the  insurers   are   liable  pro 
rata.^ 

364.  In  the  jurisprudence  of  France,  the  different  policies,  and 
subscriptions  to  a  pohcy,  of  the  same  date,  are  considered  to  be 
simultaneously  made;^  but  in  American  jurisprudence,  under  the 
clause  relative  to  prior  and  subsequent  policies,  it  may  be  proved 
that  either  policy  was,  in  fact,  made  on  a  day  different  from  its 
date,  and  that  one  of  two  policies  teas  issued,  or  one  of  two  sub- 
scriptions to  a  policy  ivas  made,  at  an  earlier  hour  of  the  same 
day? 

365.  If  two  or  more  policies,  containing  the  clause  in  question, 
are  made  on  the  same  day,  and  7iot  distinguishable  as  to  priority, 
the  clause  is  not  applicable,  and  if  the  amount  of  them  all  exceeds 
that  of  the  insurable  interest  at  its  highest  estimation  in  either  of 
them,  it  is  a  double  insurance  of  a  part  or  the  whole  of  the  inte- 
rest, and  the  different  sets  of  underwriters  are  accordingly  liable 
for  pro  rata  contribution  to  any  loss.* 

366.  To  constitute  double  insurance,  the  insurances  must  be  on 
the  same  subject. 

It  does  not  appear  that,  if  a  subject  insured  by  one  policy  is 
then  insured  again  to  an  amount  in  the  aggregate  exceeding  its 
value,  it  is  the  less  a  double  insurance,  because  divers  other  sub- 
jects are  insured  in  either  or  both  of  the  policies,  for  the  loss  on 
this  should  be  contributed  for  pro  rata  by  the  two  or  more  sets  of 
underwriters,  as  if  all  the  policies  were  upon  this  subject  only.  If 
the  policies  are  so  made  that  the  premium  on  the  common  subject 
cannot  be  distinguished  in  some  of  the  policies,  so  as  to  be  return- 
able under  the  provision  relative  to  double  insurance,  it  is  the  fault 
of  the  assured,  and  he  must  bear  the  inconvenience  ;  for,  having 
agreed  to  a  stipulation  in  a  policy  against  double  insurance  intro- 

1  Seamens  v.  Loring,  1  Mason,  128 ;  3  Lee  v.  Mass.  Fire  &  Mar.  Ins.  Co., 
Kent  V.  The  Manufacturers'  Ins.  Co.,     6  Mass.  E.  208. 

18  Pick,  19.  i  Potter  v.  Marine  Ins.  Co.,  2  Ma- 

2  BoulayPaty,  Courscle  Droit  Com.,  son,  475  ;  Wiggin  i'.  Suffolk  Ins.  Co., 
tit.  10,  s.  20,  tome  4,  pp.  116,  117,  ed.     18  Pick.  145. 

1823,  -who  cites  Kuricke  Diatr.  No.  16  ; 
Casa  Reg.  Disc.  1,  No.  65. 


202  INSURABLE   INTEREST.  [CIIAP.  III. 

duced  for  the  benefit  of  both  parties  to  that  policy,  it  would  be  a 
violation  of  all  principle  that  he  should  be  permitted  to  defeat  its 
operation  in  favor  of  the  insurer,  by  the  form  of  his  contract  with 
a  third  party. 

Accordingly,  I  cannot  but  doubt  a  decision  in  New  York.  It 
was  a  case  of  insurance  of  one  thousand  dollars  on  fixtures  and 
three  thousand  on  stock  in  one  policy,  and  then  five  thousand  dol- 
lars on  fixtures  and  stock  in  another,  without  discriminating  any 
proportion  for  each.  It  was  adjudged  that  the  assured  was  entitled 
to  recover  on  the  full  amount  insured  in  the  latter  without  appor- 
tionment, though  the  amount  insured  in  the  two  exceeded  the 
actual  value,  on  the  ground  that  the  premium  in  the  prior  policy 
could  not  be  apportioned  between  stock  and  fixtures.-^  The  court 
does  not  mean  that  no  estimate  could  be  made  of  such  an  appor- 
tionment, for  plainly  nothing  is  easier,  but  that  they  are  precluded 
from  making  it ;  a  notion  derived  from  some  of  the  early  English 
precedents. 

367.  Where  different  risks  are  insured  against  hy  the  same 
•party  on  the  same  interest  not  over  its  full  amount  in  each  of  two 
or  more  policies,  it  is  not  an  over-insurance,  and  the  provision  re- 
specting prior  and  subsequent  insurances  is  not  applicable.^ 

368.  If  the  aggregate  amount  insured  hy  divers  policies  on  a 
subject  does  not  exceed  the  value  in  one  of  them,  as  estimated  under 
the  common  rule,  or  as  agreed,  it  is  not  a  double  insurance  in  re- 
spect to  such  one. 

As  where,  one  thousand  dollars  being  insured  by  a  prior  policy 
in  which  the  subject  is  valued  at  that  amount,  the  same  sum  is 
insured  in  a  subsequent  policy  in  which  the  subject  is  valued  at 
two  thousand  dollars.^ 


1  Howard  Ins.  Co.  r.  Scribner,  5  Bousficlcl  r.  Barnes,  4  Camp.  228 ;  Ilig- 
Ilill,  2!i.s.  ginson  v.  Dall,  13  Mass.  K.  9G ;  Min- 

2  Perkins  v.  N.  E.  Marine  Ins.  Co.,  turn  v.  Columbian  Ins,  Co.,  10  Johns. 
12  Mass.  R.  214.  75;  Kane  v.  Commercial  Ins.  Co.,  8 

3  Murray  v.  Insurance  Co.  of  Penn.,  id.  229  ;  Pleasants  v.  Maryland  Ins. 
2  Wash.  C.  C.  Kep.  186.     Sec  also  Co.,  8  Cranch,  55. 

M'Kim  V.  Phoenix  Ins,  Co.,  2  id.  89; 


SECT.  XV.]  INTEREST  IN  DOUBLE   INSURANCE.  203 

369.  Two  insurances  may  he  double,  though  the  risks  commence, 
or  terminate,  at  different  times. 

During  the  time  while  the  two  insurances  concur  and  run  paral- 
lel, the  risks,  being  specified  by  the  same  description  in  both,  are 
identical,  and  come  within  the  phraseology,  and  the  object,  of  the 
provision  relative  to  prior  and  subsequent  policies.  The  objection, 
if  there  be  such,  is  the  supposed  impracticability,  or  the  incon- 
venience, of  apportioning  the  premium  on  the  policy  for  the  longer 
period.  But  notwithstanding  the  assertion  of  such  impracticability 
in  some  cases,  it  does  not  appear  that  there  is  any  insuperable  diffi- 
culty in  estimating  its  amount  for  a  part  of  the  period  in  any  case 
whatsoever,  and  in  most  cases  it  can  easily  be  done.  Where  the 
insurers  in  the  subsequent  policy  have  notice  of  the  specific  terms 
of  a  prior  one,  the  assured  should  plainly  be  precluded  from 
making  the  objection  ;  but  where  it  appears  by  the  policy,  or  by 
admissible  evidence,  that  the  difference  of  the  period  of  the  risk  in 
the  two  policies  was  known  to  the  insurers  at  the  time  of  making 
the  subsequent  policy,  it  seems  to  be  a  reasonable  inference  that 
both  parties  intended  an  estimate  of  the  parts  of  the  premium  in 
the  policy  of  the  longest  period. 

Upon  a  demand  of  return  of  premium  for  over-insurance  on  a 
subsequent  policy  made  on  a  risk  "at  and  from"  Bayonne,  the 
prior  one  being  "  from  "  the  same  port,  the  court  in  New  York 
decided  against  the  claim,  on  the  ground  that  the  underwriters  had 
run  the  risk  of  the  whole  sum  insured  "at"  Bayonne,  before  the 
risk  on  the  prior  policy  attached.i  But  the  rule  above  suggested 
would  operate  much  more  equitably  where  the  assured  is  not  by 
the  circumstances  precluded  from  an  estimate  of  the  risk  "at  Bay- 
onne," since  the  short  interest  in  such  cases  usually  results  from  a 
less  amount  of  goods  being  shipped  than  the  assured  had  antici- 
pated ;  and  as  the  insurers  in  fact  run  the  risk  only  at  Bayonne, 
it  is  in  accordance  to  the  intention  and  express  agreement  of  the 
parties  that  they  should  retain  only  a  proportional  part  of  the  pre- 
mium. 

Whatever  may  be  held  as  to  return  of  premium,  surely  two  poli- 

1  Columbian  Ins.  Co.  v.  Lynch,  1 1  Johns.  233. 


204  INSURABLE   INTEREST.  [CHAP.  III. 

cies,  according  to  the  specific  terms  of  which,  independently  of  the 
provision  relative  to  prior  and  subsequent  insurance,  and  the  rule 
for  apportioning  a  loss,  the  same  party  would  be  entitled  to  double 
satisfaction  for  the  loss  of  the  same  interest,  in  the  same  subject 
by  the  same  perils,  should  belong  to  the  class  of  double  insurance, 
as  laid  down  in  the  above  proposition. 

A  Louisiana  case  presents  two  insurances  on  the  same  cargo  of 
cotton,  to  an  amount  in  the  aggregate  exceeding  its  value,  for  dif- 
ferent periods ;  namely,  the  first  one  in  London  for  a  voyage  from 
New  Orleans  to  Liverpool,  the  subsequent  one  in  New  Orleans  on 
the  same  article,  against  fire,  while  it  was  stored  there,  having  been 
brought  back  from  the  ship,  which  had  run  aground  in  going  down 
the  Mississippi.  A  total  loss  was  paid  by  the  London  underwrit- 
ers, who  thereupon  brought  a  suit  against  those  of  New  Orleans, 
claiming  the  whole  amount  which  they  had  themselves  paid,  on 
the  ground  of  its  being  a  reinsurance,  or  a  proportional  contribu- 
tion, on  the  ground  of  its  being  a  double  insurance.  It  was  held 
not  to  be  a  reinsurance  for  the  reason  that  it  was  not  expressed,  or 
intended  to  be  such  ;  and  not  to  be  a  double  insurance  in  respect 
to  the  New  Orleans  policy,  because,  by  the  terms  of  that  policy, 
it  could  not  be  so.^  The  settlement  of  the  loss  under  the  Louis- 
iana policy  was  for  the  excess  of  the  value  of  the  cotton  over  the 
amount  insured  in  London,  thus  negativing  its  being  a  double  in- 
surance in  respect  to  that  policy.  Otherwise  it  obviously  would 
have  been  so,  so  far  as  the  risk  of  fire,  while  the  cargo  remained 
on  shore,  was  concerned.  That  is,  it  would  have  been  double  in 
respect  to  one  of  the  risks  and  in  respect  to  a  part  of  the  period  of 
the  London  policy,  and  in  respect  to  the  only  risk  and  the  whole 
period  of  the  New  Orleans  policy. 

370.  JVherc  the  aggregate  amount  of  all  of  the  insurances  ex- 
ceeds the  valuation  of  the  subject  in  the  last  policy,  and  there  is 
not  besides  the  aggregate  iiroportions  insured  by  the  prior  policies 
an  adequate  proportion  for  it,  it  is,  in  respect  to  such  policy,  a 
case  of  over-insurance.  That  is,  if  the  prior  policies,  being  at  a 
higher  valuation,  cover  three  quarters  of  the  subject,  at  such  valu- 

•  Alliance  Ins.  Co.  v.  La.  State  Ins.  Co.,  8  La.  11.  11. 


SECT.  XV.]  INTEREST   IN  DOUBLE   INSURANCE.  205 

ation,  the  assured  ought  still  to  have  the  right  to  apply  the  last 
policy  to  the  remaining  quarter,  though  the  amount  insured  in  the 
prior  policies  may  be  equal  to  the  valuation  of  the  whole  subject 
in  the  last  policy,  unless  this  construction  is  expressly  negatived  by 
some  stipulation  in  the  last  policy.  The  parties  to  that  policy 
should  not  be  benefited  or  prejudiced  by  the  valuations  in  other 
policies,  but  their  rights  and  liabilities  should  surely  be  regulated 
by  the  valuation  which  they  have  agreed  upon  in  their  own  con- 
tract. 

Accordingly,  where  £6,000  was  insured  on  a  vessel  valued  at 
£8,000,  and  in  a  subsequent  policy  £600  was  insured  on  the 
same  vessel,  valued  at  £6,000,  the  last  policy  was  not,  upon  the 
principle  just  stated,  a  case  of  double  insurance,  though  the  ruling 
by  Lord  Ellenborough  to  that  effect,  is  not  put  upon  that  ground.^ 
If  any  of  the  prior  insurances  are  by  open  policies,  the  invoice 
value  will  be  taken  in  those  instead  of  a  valuation,  in  determining 
the  question  of  over-insurance.^ 

The  rule  just  stated  respecting  over-insurance,  will  apply  equally 
to  any  other  policy  than  the  last,  the  priority  clause  being  out  of 
the  case.  It  is  stated  in  respect  of  the  last  policy  merely  for  the 
purpose  of  rendering  the  subject  more  readily  understood. 

371.  It  follows,  and  is  not  a  matter  of  question,  that  in  case  of 
divers  policies  on  the  same  subject  at  different  values,  the  aggre- 
gate may  he  an  over-insurance  in  respect  to  some  of  them,  and  not 
so  in  respect  to  others. 

Where  policies  do  not  contain  the  clause  relative  to  prior  and 
subsequent  policies,  and  where- that  clause  is  rendered  inoperative 
by  reason  of  the  insurances  being  simultaneously  made,  the  right 


1  Bousfield  V.  Barnes,  4  Camp.  228.  policies  had  been  £G,000,  wliich  -would 

The  ruling,  as  reported,  was  against  be  entirely  to  disregard  the  agreement 

its  being  a  double  insurance,  on  the  as  to  the  value  by  the  parties  them- 

ground  simply  that  the  whole  insur-  selves.     For  this  reason  the  I'uling  in 

ance  did  not  exceed  the  real  value,  that  case  has  been  objected  to  in  the 

■which  would  have  justified  the  same  former  editions  of  this  treatise, 

ruling  against  its  being  a  double  insur-  2  See  Kenny  v.  Clarkson,  1  Johns, 

ance,  though  each  of  the  valuations  in  R.  385. 
VOL.    I.                                    18 


206  INSURABLE   INTEREST.  [CHAP.  III. 

of  contribution  can  be  claimed  only  by  policies  in  respect  of  both 
or  all  of  which  there  is  an  over-insurance. 

372.  If  the  above  propositions  are  correct,  the  result  is,  that 
two  insurances  may  be  double  in  part  in  four  different  ways  :  — 
1.  Where  some  of  the  assured,  in  either  or  both  of  them,  are  twice 
insured  on  the  same  interest  in  the  same  subject.  2.  Where  a 
party  is  doubly  insured  only  on  a  part  of  his  interest  in  a  subject. 
3.  Where  a  party  is  doubly  insured  against  some  risks,  and  not 
against  others,  on  his  whole  subject.  4.  Where  the  same  party  is 
insured  on  the  same  interest,  against  the  same  risks,  for  a  longer 
period  in  one  policy  than  in  the  other. 

In  other  words,  if  we  dismiss  entirely  all  stipulations  and  rules 
as  to  return  of  premium  and  apportionment  of  loss,  and  suppose 
two  contracts  of  insurance  to  be  enforced  according  to  their  obvi- 
ous construction,  the  assured  will  pay  a  duplicate  premium,  and 
the  insurers  will  pay  a  duplicate  loss,  in  respect  to  some  of  the 
parties,  or  a  part  of  the  interest,  or  a  part  of  the  risks,  or  a  part 
of  the  period,  specified  in  one  or  both  of  the  policies. 

373.  Insurance  by  different  parties  on  distinct  interests  in  the 
same  subject,  not  exceeding  the  values  of  the  interests  respectively, 
is  not  double  insurance,  though  the  aggregate  of  the  insurances 
exceeds  the  value  of  the  subject.^ 

As  in  case  of  mortgager  and  mortgagee  insuring  independently 
of  each  other. 

Goods  were  shipped  by  Meybohm,  of  Petersburg,  to  Amyand, 
of  London,  on  an  agreement  that  the  proceeds  should  be  applied 
in  satisfaction  of  a  balance  due  to  the  latter.  Meybohm  assigned 
the  bill  of  lading  to  Tamesz,  of  Petersburg,  to  apply  the  proceeds 
in  satisfaction  of  a  balance  due  to  him  ;  the  amount  due  to  each 
being  greater  than  the  value  of  the  goods.  Insurances  were  made 
in  London  in  behalf  of  each  of  them  to  the  full  amount  of  the 
shipment,  the  underwriters  on  Tamesz's  interest  having  notice  of 
insurance  by  other  parties.  In  a  suit  on  the  policy  for  Tamesz, 
Lord  Mansfield  and  his  associates  gave  judgment  for  the  full 
amount,  on  the  ground  that  the  insurances  were  for  different  par- 

^  Warder  v.  Ilorton,  4  Binn.  529. 


SECT.  XVI.]  INTEREST  IN  REINSURANCE.  207 

ties  on  different  interests  ;  namely,  on  the  respective  interests  of 
Amyand  and  Tatnesz,  and  not  on  that  of  Meybohm.^ 

The  court  did  not  decide  the  question  of  the  right  to  possession 
of  the  goods  between  Amyand  and  Tamesz,  nor  that  the  same 
goods  can  be  sold  or  pledged  to  two  different  parties  so  as  to  give 
to  each  a  valid  insurable  interest  to  their  full  value.  If  either  was 
considered  to  stand  in  place  of  Meybohm  as  principal,  and  the 
other  as  pledgee,  the  case  is  plainly  within  the  rule  as  to  mort- 
gager and  mortgagee,  and  each  might  insure  to  the  full  value. 
This  construction  is  excluded  by  the  court ;  and  it  does  not  appear 
upon  what  other  the  position  taken  by  the  court  can  be  supported. 
It  is  doubted  by  Mr.  Marshall.^  But  there  is  no  doubt  of  the 
general  doctrine  asserted  in  the  case,  that  where  each  of  two  par- 
ties, having  distinct  interests  in  a  subject,  to  its  full  value,  insures 
upon  it  to  its  full  value,  independently  of  the  other,  it  is  not  a  case 
of  double  insurance. 


SECTION    XVI.       INTEREST    IN    REINSURANCE. 

374.  Reinsurance  is  a  contract  ivhereby  one  party,  called  the 
^^  reinsurer, ^^  in  consideration  of  a  premium  paid  to  him,  agrees  to 
indemnify  the  other  against  the  risk  assumed  by  the  latter,  by  a 
policy  in  favor  of  a  third  party. 

375.  Every  insurer  has  an  insurable  interest  for  reinsurance. 

376.  The  reinsurance  may  be  against  all  or  a  part  of  the  risks 
that  have  been  assumed  by  the  reinsured  in  the  original  policy  in 
which  he  is  the  insurer. 

377.  Reinsurance  is  an  illustration  of  the  distinction  between 
an  "insurable  interest^'  and  ownership.  An  underwriter,  by  sub- 
scribing a  policy,  acquires  no  property  in  the  subject  insured,  yet 
he  acquires  an  insurable  interest,  and,  having  rendered  himself 
directly  liable  to  loss  from  certain  perils,  may  stipulate  to  be  in- 
demnified against  those  perils.      His  interest,  however,  exists  only 


1  Godin  V.  Royal  Exch.  Ass.  Co.,  1  Burr.  489 ;  1  Bl.  103. 

2  Insurance,  2d  ed.  152. 


208  INSURABLE   INTEREST.  [CHAP.  III. 

in  relation  to  the  perils  against  which  he  has  insured  in  the  original 
policy. 

The  English  law  forbids  reinsurance,  "unless  the  insurer  shall 
be  insolvent,  become  bankrupt,  or  die  ;"^  and  this  statute  is  con- 
strued to  extend  to  reinsurance  of  foreigners.^  It  is  allowed  in 
France,  and  is  common  in  the  United  States.^ 

378.  A  common-carrier,  or  other  ijarty  ansiveralle  to  another 
for  certain  risks  upon  a  subject,  may  be  reinsured  against  those 
risks,  subject  to  the  same  rules  and  exceptions,  such  as  illegality, 
his  own  misconduct,  &c.,  as  in  original  insurance^ 

Thus,  the  owners  of  a  vessel,  answerable  for  any  loss  by  the 
fault  of  boatmen  employed  in  bringing  a  cargo  from  the  shore, 
may  insure  the  goods  against  that  risk.^ 

The  owner,  having  sold  his  vessel  subject  to  a  stipulation  that 
he  is  to  bear  certain  risks,  may  protect  himself  against  those  risks 
by  insurance,  on  the  principle  of  reinsurance.^ 


119  Geo.  II.  c.  37.  The  subject  of  the  amount  of  the 

2  Andree  v.  Fletcher,  2  T.  E,.  161.  insurable   interest  might  not  impro- 

3  N.  Y.  Bowery  Ins.  Co.  v.  N.  Y.  perly  be  introduced  here,  but  it  seem- 
Fire  Ins.  Co.,  17  Wend.  359.  ed  to  me  that  putting  it  into  imme- 

4  Crowley  V.  Cohen,  3  B.  &  A.  478.  diate   connection  with  that  of  losses 

5  Walker  v.  Maitland,  5  B.  &  A.  1 7 1 .  would  give  the  student  greater  facility 

6  Barr  v.  Gibson,  5  Mees.  &  Wels.  in  studying  the  latter. 
390. 


CHAPTER    IV. 

THE  PARTIES  TO  AN  INSURANCE.  — DESCRIPTION  OF  THE 

ASSURED. 

379.  OxLY  those  interested  in  the  subject  at  the  commencement 
of  the  risk  under  the  policy,  can  be  original  parties  to  the  policy,^ 
and  they  continue  to  be  parties  only  while  they  have  an  interest. 
Others  may  become  parties  by  stipulation  or  transfer,  either  with 
them  or  in  their  stead. 

380.  Insurance  made  by  a  person  in  his  own  name  only,  with- 
out any  indication,  in  the  policy,  that  any  other  is  interested,  can 
be  applied  only  to  his  own  proper  interest  in  the  subject,  or  his 
interest  as  trustee.  Sic.  In  other  words,  a  contract  with  A  cannot 
be  construed  to  be  a  contract  with  B. 

Thus,  insurance  by  one  part-owner  of  a  ship  in  his  own  name 
merely,  is  not  applicable  to  the  interest  of  the  others  :^ 

So,  if  A  is  insured,  "by  his  agent  B,"  the  policy  covers  only 
the  interest  of  A,^  and  not  that  of  A  and  his  partner  : 

So,  if  one  of  the  two  shippers,  to  whom  the  same  shipment  be- 
longs in  common,  effects  a  policy  in  his  own  name,  where  only  his 
share  of  the  shipment  is  at  his  risk."* 

So,  a  policy  "for  account  of  M,"  is  for  his  account  solely.^ 

381.  So,  conversely,  a7i  insurance  of  A  and  B  jointly,  as  co- 
partners or  otherwise,  has  been  held,  in  England,  not  to  be  appli- 
cable to  the  sole  interest  of  one,  where  the  other  has  no  interest  in 
the  subject.^ 

'  Perchard  v.  Whitmore,  2  B.  &  P.  5  Kemble  v.  Rhinelander,  3  Johns. 

155,  n.  Cas.  130.     See  also  Pearson  v.  Lord, 

2  Finney  v.  Bedford  Ins.  Co.,  8  6  Mass.  R.  81,  and  Russell  v.  N.  E. 
Mete.  348.  Marine  Ins.  Co.,  4  Mass.  R.  82. 

3  Dumas  v.  Jones,  4  Mass.  R.  647.  6  Bell  v.  Ansley,  16  East,  141 ;  Co- 

4  Graves  v.  Boston  Mar.  Ins.  Co.,  hen  v.  Hannam,  5  Taunt.  101, 
2  Cranch,  419. 

18* 


210  THE   PARTIES.  [CHAP.  IV. 

382.  In  many  policies  the  assured  is  so  described  that  any  per- 
son may  he  comprehended,  and  avail  himself  of  the  contract,  by 
proving  his  interest,  and  showing  that  the  policy  was  intended  for 
him. 

Different  forms  of  expression  are  adopted  for  this  purpose.  In 
England,  insurance  appears  to  be  made  most  frequently  in  the 
name  of  the  broker,  who  causes  himself  to  be  insured  on  an  inte- 
rest, "as  well  in  his  own  name  as  in  the  name  and  names  of  all 
persons  whatsoever  to  whom  the  same  may  in  any  way  appertain." 

The  same  form  is  often  used  in  the  United  States,  and  also  a 
shorter  one  of  like  import,  in  which  the  party  effecting  the  policy 
is  insured  for  "himself  and  whom  it  may  concern." 

At  Marseilles,  the  policy  was  formerly  expressed  to  be  made 
for  "such  person  as  should  be  thereafter  named." 

At  Hamburg,  the  losses  under  a  policy  were  made  payable  to 
"  the  bearer."  ^ 

Other  general  forms  of  expression  of  similar  import  have  been 
used  at  different  places  for  the  same  purpose,  from  early  times.^ 

By  these  forms  the  assured  might  be  concealed  from  the  know- 
ledge of  the  underwriter,  and  they  were  equivalent  to  the  practice 
of  subscribing  policies  in  blank,  as  was  formerly  done  at  Mar- 
seilles,^ and  also  in  England.^  The  practice  of  insuring  for  whom 
it  might  concern  was  adopted,  says  Emerigon,^  for  the  purpose  of 
concealing  the  name  of  the  party  interested,  and  keeping  his  com- 
mercial enterprises  secret.  On  this  account  the  insurers  in  Eng- 
land complained,  that  "policies  were  so  loose  that  an  underwriter 
had  no  opportunity  of  knowing  the  nature  of  the  thing  insured,  or 
who  the  persons  were  for  whom  he  insured."^  Accordingly,  a 
statute  was  made  in  1785,  prescribing  the  manner  in  which  the 
assured  should  be  described  in  the  policy.''  This  statute  was  in- 
tended to  secure  to  the  underwriter  a  knowledge  of  the  person 
with  whom  he  was  contracting.     But  soon  after  it  went  into  ope- 

1  Old.  of  Ilainl).,  tit.  1 ,  s.  4,  2  Mag.        4  Tray  v.  Edie,  1  T.  R.  313. 
211.  5  Chap.  11,  s.  4. 

2  Lc  (Juidon,  c.  2,  a.  G  ;  2  Saund.        c  Pray  v.  Edie,  1  T.  R.  313. 

R  6,  n.  1.  7  25   Geo.  III.  c.  44  ;   1  B.  &  P. 

3  Euier.  torn.  1,  p.  4  7,  c.  2,  s.  4.  352,  n. 


CHAP.  IV.]  DESCRIPTION   OF   THE   ASSUBED.  211 

ration,  an  underwriter  took  advantage  of  it  to  evade  his  contract, 
on  llie  ground  that  the  agent,  in  whose  name  the  insurance  had 
been  effected,  was  not  described  as  such  in  the  policy.  In  that 
case,  Lord  Mansfield  intimated  a  doubt  of  the  expediency  of  the 
law.i  Another  pohcy  was  evaded  under  the  same  law,  because  it 
was  made  for  W.  Wilton,  and  "the  other  owners,"  they  not  being 
named.2  Another  statute  was  then  made  to  remedy  the  mischiefs 
of  the  first,  which  required  only  the  name  of  the  person  interested, 
or  that  of  his  agent,  to  be  inserted.^  As  the  agent  needs  not  to 
be  described  as  such  under  this  statute,  it  does  not  secure  to  the 
underwriter  a  knowledge  of  the  party  actually  interested."*  This 
was  in  effect  repealing  the  first  statute,  and  no  reason  appears  why 
it  should  not  be  repealed  ;  since  the  inconvenience,  if  any  existed, 
seemed  to  be  very  much  within  the  power  of  the  underwriters  to 
remedy,  without  the  aid  of  an  act  of  Parliament ;  if  they  wished 
to  know  what,  and  for  whom,  they  insured,  they  might  have  re- 
fused to  sign  a  policy  in  which  the  assured  and  the  subject  were 
not  sufficiently  described. 

Where  an  agent  holds  goods,  of  which  he  does  not  know  the 
actual  owner,  as  in  case  of  the  commissioners  of  the  Dutch  prizes,^ 
and  where  one  agent  consigns  goods  to  another,  without  advising 
the  consignee  that  he  holds  them  as  agent, *"  the  consignee  may  be 
able  to  give  the  underwriters  information  of  all  the  facts  material 
to  the  risk  ;  yet,  if  such  a  law  were  in  force  as  that  first  above 
referred  to,  he  could  not  insure. 

383.  A  policy  made  in  the  name  of  a  particular  person  ^'■for 
whom  it  may  concern/'  or  with  any  other  equivalent  clause,  will  be 
applied  to  the  interest  of  the  party  or  parties,  and  only  the  party 
or  parties,  for  whom  it  is  intended  by  the  person  who  effects  or 
orders  it,  if  such  party  has  authorized  its  being  made  beforehand, 
or  subsequently  adopts  it.^ 

•  Pray  v.  Edie,  1  T.  R.  313.  5  Lucena  v.  Craufurd,  3  B.  &  P.  75. 

2  Wilton  V.  Reaston,  Park,  20.  6  Russell  v.  N.  E.  Marine  Ins.  Co., 

3  28  Geo.  III.  c.  56.  4  Mass.  R.  82. 

4  De  Vignier  v.  Swanson,  1  B.  &  P.  "^  Lambeth  v.  Western  Fire  &  Mar. 
346,  n.;  WoIffj;.Horncastle,lB.  &P.  Ins.  Co.,  4  Rob.  La.  R.  235;  11  id. 
316.  86. 


212  THE   PARTIES.  [CHAP.  IV. 

It  has  been  held  in  Louisiana,  that  a  policy  effected  by  an  agent 
without  an  order  or  adoption  before  notice  of  loss  by  his  principal, 
who  is  fully  insured  on  the  same  subject  in  a  foreign  country,  can- 
not after  notice  of  loss  be  adopted  and  availed  of  as  an  over  or 
double  insurance,  in  favor  of  a  claim  by  the  foreign  insurers  for  a 
proportional  reimbursement  to  them  of  the  loss,^  the  insurance  not 
having  been  intended  as  an  over  or  double  insurance  to  be  so 
applied. 

It  has  been  remarked  in  favor  of  policies  for  whom  it  may  con- 
cern, that  "What  is  an  insurable  interest  is  a  question  of  some 
difficulty.  Hence  the  advantage  of  a  general  form  in  naming  the 
assured,  and  extending  the  effects  of  the  insurance  as  far  as  the 
contract  may  be  found  to  have  been  authorized  by  mercantile 
usages  ;  thus  comprising  the  cases  of  consignees,  factors,  trustees, 
and  agents,  and  persons  having  a  qualified  interest  in  the  pro- 
perty." ^ 

In  a  New  York  case,  Jones,  C.  J.,  speaks  of  this  form  of  policy 
as  not  being  in  use  in  insurance  against  fire,^  but  it  is  a  frequent 
practice  in  Boston  to  make  fire  policies  in  this  form  ;  and  such  are, 
it  seems,  made  at  New  Orleans.^ 

The  phrase  "whom  it  may  concern,"  is  a  technical  one,  and  is 
understood  to  mean,  not  any  body  who  may  have  an  interest  in  the 
thing  insured,  but  only  such  as  are  in  contemplation  of  the  parties 
making  the  contract.  Such  a  policy  supposes  an  agency,  and, 
proceeding  on  that  ground,  looks  only  to  the  principal  in  whose 
behalf,  or  on  whose  account,  the  agent  moves  in  the  transaction, 
and  he  for  whose  benefit  the  insurance  is  procured  is  the  person 
in  the  contemplation  of  the  parties,  —  is  he  whom  alone  it  "  con- 
cerns." ° 

A  foreigner  may  be  a  party  under  such  general  description.*^ 

1  Alliance  Mar.  Ins.  Co.  v.  La.  State  ^  Alliance  Mar.  Ins.  Co.  v.  La.  State 
Ins.  Co.,  8  La.  R.  11.  Ins.  Co.,  8  La.  R.  11. 

2  Lee  V.  Massachusetts  Fire  &  Mar.  5  Newson  v.  Douglas,  7  Harris  & 
Ins.  Co.,  G  Mass.  R.  208,  per  Sew-  Johns.  417.  See  also  Cox  v.  Parry, 
all,  .1.  1  T.  R.  4G4. 

3  I)(;  Forest  v.  Fulton  Fire  Ins.  Co.,  <>  Per  Story,  J.,  in  Seamans  v.  Lor- 
1  Hall,  112.  ing,  1  Mason,  128. 


CHAP.  IV.]  DESCIilPTION    OF   THE   ASSURED.  213 

A  part-owner  of  a  cargo  worth  ten  thousand  dollars,  his  interest 
being  one  half,  effected  insurance  in  his  own  name,  and  for  "every 
person  whom,"  he,  and  on  capture  and  condenmation  of  his  half, 
and  the  acquittal  of  the  other  part-owner's,  the  question  arose  in 
the  Supreme  Court  of  New  York,  whether  he  was  the  sole  assured, 
or  he  and  the  other  part-owner  were  jointly  insured.  If  he  only 
was  insured,  the  total  loss  was  five  thousand  dollars  ;  if  both  were 
parties  to  the  policy,  it  was  twenty-five  hundred  dollars.  This 
question  was  determined  by  the  evidence  of  his  intention,  both 
from  the  terms  of  the  policy  itself,  and  aliunde.^ 

However  general  may  be  the  description  of  the  parties,  no  part 
of  the  amount  insured  can  be  applied  in  behalf  of  any  other  party 
than  those  intended,  though  the  nominal  assured  consents  so  to 
apply  it.^  An  obvious,  conclusive  objection  to  such  application 
is,  that  an  assured  might  so  have  the  election  to  apply  his  policy 
to  the  interests  of  any  uninsured  parties  who  had  met  with  losses 
within  the  risk  specified,  upon  such  terms  as  he  could  make  ;  and 
if  he  found  no  such,  he  might  demand  a  return  of  premium. 

384.  The  intention  of  the  party  who  orders  the  policy  deter- 
mines who  are  the  ^'  concerned^'  under  a  general  description  ;  though 
those  intended  are  not  known  by  the  broker  who  effects  the  policy, 
br  by  the  insurers,  to  be  so.^ 

385.  The  rule,  that  an  insurance  ''for  ichom  it  may  concern," 
will  avail  in  behalf  of  the  party  for  whom  it  is  intended,  does  not 
mean  that  any  specific  individual  must  be  intended.  It  is  enough 
that  the  agent,  and  the  insurers,  intend  it  for  any  party  or  parties 
who  have  an  insurable  interest.     If  the  insurance  is  ordered,  then 


•  Lawrence  v.  Sebor,  2  Caines,  203.  also  Lawrence  v.  Van  Horn,  1  Caines, 

The  court  were  divided  on  the  mixed  276,  where  the  same  question  occur- 

matter  of  law  and  fact,  three  of  the  red  on  a  similar  policy, 

judges  being  of  opinion  that  a  joint  2  Bauduy    v.   United    Lis.    Co.,   ? 

insurance  was  intended,  and  two,  viz.  Wash.  C.  C.  R.  391.     See  also  Fier- 

Kent,  C.  J.,  and  Thompson,  J.,  that  son  v.  Brenham,  5  La.  An.  R.  540. 

it  was  intended  to  be  on  the  separate  3  Buck  v.  Chesapeake  Ins.  Co.,  1 

interest  of  the  nominal  assured,  such  Peters's  S.  C.  R.  151 ;  Newson's  Adm'r 

being,  in  their  opinion,  the  more  ob-  v.  Douglas,  7  Har.  &  Johns.  417.    See 

vious  construction  of  the  policy.    See  also  Seamans  v.  Loring,  1  Mason,  128. 


214  THE  PARTIES.  [chap.  IV. 

its  application  is  governed  by  the  intention  of  the  party  who  origin- 
ally gives  the  order ;  if  it  is  not  ordered,  its  application  will  be  to 
the  interest  of  the  party  intended  by  the  one  effecting  it,  whether 
himself  or  another.  But  he  may  intend  it  for  whatever  party  shall 
prove  to  have  an  insurable  interest  in  the  specified  subject,  in 
which  case  it  will  be  applicable  to  the  interest  of  any  person  sub- 
sequently ascertained  to  have  such  an  insurable  interest,  who  adopts 
the  insurance. 

A  valid  insurance  may,  therefore,  be  made  between  parties, 
both  of  whom  are  at  the  time  ignorant  of  the  specific  persons  to 
whose  interest  it  is  applicable.^ 

386.  An  insurance  on  a  subject  expressed  to  be  "on  account  of 
the  owners,^'  will  cover  the  interest  of  all,  or  a  part,  of  the  owners, 
as  it  may  have  been  intended ;  but  of  no  other  than  owners. 

The  application  of  the  term  '''owners"  in  such  case  is  open  to 
explanation  by  extrinsic  evidence.  And  where  one  of  the  "own- 
ers," for  whom  the  policy,  on  a  ship  and  cargo,  was  intended, 
transferred  a  part  of  his  interest,  namely,  a  sixth  of  the  whole,  after 
the  policy  was  effected  but  before  the  cargo  was  put  at  risk,  the 
insurance  was  held  to  be  applicable  to  the  five  sixths  belonging  to 
the  parties  for  whose  account  the  insurance  was  intended.^ 

In  another  case  the  master  instructed  F.,  as  agent,  to  insure' 
$1,000  on  cargo  "on  account  of  owners  ;"  he  effected  a  policy 
on  cargo  to  that  amount,  for  the  owners  of  the  brig  S.  There 
were  three  owners  of  the  brig.  Of  the  cargo  $456  belonged  to 
the  three  in  common,  and  $317  to  one,  and  $142  to  another, 
separately.  The  question  was,  whether  the  policy  was  applicable 
to  the  master's  interest  only,  or  to  that  of  all  three,  both  joint  and 
separate.  Extrinsic  evidence  was  adn)itted  to  determine  the  ap- 
plication of  the  policy ;  which  was  applied  to  the  master's  interest 
only,  on  the  ground  that  he  had  no  authority  as  part-owner  or 


1  This  appears  from  Luccna  v.  Crau-  Ilurlbut  v.  Pacific  Ins.  Co.,  2  Sumner, 

furd, and  the;  other  insurances  cflcctcd  471. 

by  commissioners  on  the  Dutch  vcs-         -  Catlctt  ij.  Pacific  Ins.  Co.,  1  Paine's 

scls  seized  provisionally  by  order  of  N.  Y.  Sup.  Ct.  R.  594  •,  S.  C,  1  Wend, 

the  British  government;  and  also  from  561 ;  S.  C,  4  Wend.  75. 


CHAP.  IV.]  DESCRIPTION   OF   THE   ASSURED.  2l5 

Otherwise  to  order  insurance  for  the  other  part-owners,  and  that 
the  insurance  had  not  been  adopted  by  them.^ 

In  this  case  it  appears  from  the  amount  insured  to  have  been 
the  intention  to  insure  on  account  of  all  the  owners.  And  the  de- 
mand made  in  the  suit  for  this  application  of  the  policy  shows  that 
it  had  been  adopted  by  the  other  two  owners.  The  case,  there- 
fore, seems  to  be  inconsistent  with  the  doctrine  established  by  the 
authorities  ;  and  the  decision  does  not  accord  to  the  terms  of  the 
policy. 

387.  The  term  "owners,^'  and  phrase  "whom  it  may  concern," 
as  we  have  seen,  are  usually  understood  to  have  reference  to  those 
who  are  concerned  at  the  date  of  the  policy,  or  at  the  commence- 
ment of  the  risk  ;  but  a  policy  expressed  to  be  on  account  of  the 
owners,  or  whom  it  may  concern,  "  at  the  time  of  the  loss,"  will 
be  available  to  such,  on  proof  of  interest,  though  the  subject,  and 
with  it  the  policy,  may  have  passed  through  divers  assignments.^ 
By  this  provision,  accordingly,  the  policy  was  considered  to  be 
made  assignable  with  the  subject  without  the  consent  of  the  under- 
writers. 

388.  One  may  become  a  party  to  an  insurance  effected  in  his 
behalf,  in  terms  applicable  to  his  interest,  without  any  previous 
authority  from  him,  by  adopting  it,  either  before  or  after  a  loss 
has  taken  place  and  is  knoivn  to  him,^  though  the  loss  may  have 
happened  before  the  insurance  was  made.^ 

389.  The  adoption  of  a  policy  by  the  party  in  whose  behalf  it 
was  effected,  needs  not  to  be  in  any  particular  form.     The  bring- 


1  Foster  v.  United  States  Ins.  Co.,  Ins.  Co.,  5  Mete.  192;  Pouverin  v. 
11  Pick.  85.  La.  State  Ins.  Co.,  4  Kob.  La.  R.  235  ; 

2  Rogers  v.   Traders'  Ins.    Co.,  G  Hagedorn  v.  Oliverson,  2  M.  &  S.  485  ; 
Paige,  583.  Holland  v.  Smith,  6  Esp.  1 1 ;  Mickles 

3  Lucena  V.  Craiifurd,  1  Taunt.  325,  v.   Rochester    City  Bank,  11  Paige, 
5  B.  &  P.  269;  Routh  v.  Thompson,  118. 

13  East,  274  ;  Steinback  v.  Rhinelan-        4  Bridge  v.  Niagara  Ins.  Co.,  1  Hall's 

der,  3  Johns.  Cas.  281,  per  Kent,  C.  R.247.    In  French  jui-isprudence  the 

J. ;  Watkins   v.  Durand,  1   Porter's  adoption  must,  it  seems,  be  before  no- 

(Ala.)  R.  251;  Barlow  v.  Leckie,  4  ticeofloss.    Alauzet,  A.  D.  1843,  torn. 

J.  B.  Moore,  8  ;  Finney  v.  Fairhaven  2,  pp.  223,  224. 


216  THE   PARTIES.  [CHAP.  IV. 

ing  of  a  suit,  or  being  a  party  to  one,  upon  a  policy,  has  been  held 
in  Massachusetts  to  be  a  sufficient  adoption  of  it.^ 

A  contrary  decision  was  made  in  Pennsylvania.  In  a  suit  by 
A  on  a  marine  policy,  expressed  to  be  made  by  B  "for  A,  as  well 
in  his  own  name  as  for  and  in  the  name  of  all  and  every  person  or 
persons,  to  whom  the  property  insured  does,  may,  or  shall  apper- 
tain," it  was  held  that  he  could  not  recover,  because  it  did  not 
appear  that  he  had  authorized  or  adopted  it.^  But  the  better  doc- 
trine appears  to  be  as  above. 

A  policy  was  effected  in  London  by  H.,  in  August,  1810,  for  S., 
a  Danish  subject,  on  a  voyage  from  Gluckstadt  to  Great  Britain, 
without  any  previous  authority  for  that  purpose,  and  the  cargo 
insured  was  lost  by  capture  about  the  time  when  the  policy  was 
made,  and  it  did  not  appear  that  S.  adopted  the  policy  until  July, 
1812.  Such  adoption  was  held  to  be  equivalent  to  a  previous 
authority.^ 

390.  Where  one  without  order  or  authority  effects  insurance 
intended  partly  or  wholly  for  another  in  a  form  available  to  him 
and  applicable  to  his  interest,  such  other  has  an  election  to  be  a 
party  to  the  policy  or  decline  it.  But  he  will  become  a  party  after 
notice,  and,  as  such,  liable  for  the  premium,  unless  he  declines  to 
be  so  without  unnecessary  delays 

391.  In  order  to  render  an  insurance  effected  by  one  partner  or 
part-owner  applicable  to  the  interest  of  the  copartners  or  other 
part-owners,  it  is  not  enough  that  the  partnership,  by  its  terms 
and  extent,  authorizes  the  insurance  on  joint  account,  or  that  it  is 
specifically  authorized  beforehand,  or  subsequently  ratified.  It  is 
also  necessary  in  this,  as  in  other  cases,  that  the  terms  of  the  policy 
should  be  such  as  to  be  applicable  to  the  joint  or  common  inte- 
rest. 

Mr.  Chief  Justice  Kent  says  :  "  There  can  be  no  doubt  that  a 

1  Finney  r.  New  Bedford  Ins.  Co.,  ^  Such  is  the  law  in  France,  Emer. 
8  Mete.  .'J18.  torn.  1,  p.  144,  c.  5,  s.  6,  and  ours  is  no 

2  De  lioUe  v.  rcnnsylvauia  Ins.  Co.,     doubt  the  same. 
4  Whart.  G8. 

3  Ilagedorn  v.  Oliverson,  2  M.  &  S. 
485. 


CnAP.  IV.]  DESCRIPTION   OF   THE  ASSURED.  217 

partner  has  such  interest  in  the  entirety  of  the  cargo  as  to  enable 
him  separately  to  insure  it,  and  that  an  averment  that  he  had  an 
interest  in  the  property  to  the  amount  of  the  insurance,  is  supported 
by  proof  of  a  partnership  interest  to  that  amount."  ^  But  he 
thought,  if  the  partnership  was  confined  to  a  particular  adventure, 
one  partner  could  not  insure  the  whole  property  in  his  own  name. 
This  distinction  is  difficult  of  application,  since  every  partnership 
is  more  or  less  limited,  and  it  would  not  be  easy  to  say  how  gene- 
ral it  must  be,  to  give  each  partner  an  insurable  interest  in  the 
partnership  property  to  its  full  value. 

Chief  Justice  Marshall  makes  no  such  distinction.  He  says  : 
"  Under  no  rule  of  proceeding  on  a  special  contract  could  the 
interest  of  a  copartnership  be  given  in  evidence  on  an  averment  of 
individual  interest,  or  the  averment  of  the  interest  of  a  company 
be  supported  by  a  special  contract  relating  in  its  terms  to  one 
individual."  ^ 

This  I  understand  to  be  the  established  doctrine.^  And  it  is 
merely  the  application  to  this  contract,  of  a  rule  common  to  this 
and  others. 

392.  If  a  party  has  an  interest  in  a  subject  in  different  capaci- 
ties, as  where  he  is  owner  of  a  certain  proportion,  and  trustee  of 
the  remainder,  he  may  insure  both  interests  in  his  own  name,  under 
a  merely  general  description  of  the  subject,  provided  his  interest, 
other  than  as  absolute  owner,  is  such,  that  he  might  insure  it  in 
his  oivn  name  without  a  particular  specification  of  it :  "* 

As  in  a  case  before  Gibbs,  C.  J.,  and  his  associates  in  the 
English  Common  Pleas,  on  a  policy  on  cargo  "  by  order  and  on 
account  of  D.,"  who  owned  seven  sixteenths,  and  had  a  lien  for 
advances  on  the  remainder.^ 


1  Lawrence  v.  Sebor,  2  Caines,  203.  4  gee  Hiscox  v.  Barrett,  cited  1 6 
See  also  Holmes  v.  United  Ins.  Co.,  2  East,  145 ;  Murray  v.  Columbian  Ins. 
Johns.  Cas.  329.  Co.,  11  Johns.  302,  is  contra. 

2  2  Cranch,  440,  Graves  v.  Boston  ^  Carruthers  v.  Sheddon,  6  Taunt. 
Mar.  Ins.  Co.  14  ;  S.  C,  1  Marsh.  R.  416. 

3  See  Pearson  v.  Lord,  6  Mass.  R. 
81  ;  Kemble  v.  Rhinelander,  3  Johns. 
Cas.  130. 

VOL.   I.  19 


218  THE   PARTIES.  [CHAP.  IV. 

So  a  fire  policy  on  a  building  described  by  the  assured  to  be 
"his  mill,"  was  held  to  be  applicable  to  his  interest  both  as  owner 
and  mortgagee.! 

It  is  otherwise  held  in  a  New  York  case  by  Lewis,  C.  J.,  and 
his  associates,^  but  the  better  doctrine  both  on  principle  and  author- 
ity is  as  above. 

393.  If  a  party  insured  in  his  own  name  has  or  expects  an  inte- 
rest in  different  capacities,  or  expects  an  interest  in  one  capacity 
as  that  of  owner,  and  proves  to  have  one  in  a  different  capacity, 
as  that  of  trustee,  consignee,  &ic.,  is  he  conclusively  entitled  and 
liable  to  be  considered  as  an  assured,  in  resjject  to  any  one  or  more 
interests  to  which  the  policy  is,  by  its  terms,  applicable  1  or  may 
he  or  others  determine  the  application  of  the  policy  by  proving  his 
intention  1 

In  other  words,  whether  the  application  of  the  policy  to  one  or 
another  interest,  or  to  divers  interests,  in  such  case  depends  upon 
the  intention,  just  as  the  application  of  a  policy  for  whom  it  may 
concern,  in  favor  of  one  or  another  party,  depends  upon  the  inten- 
tion ? 

The  rule  on  this  subject  must  be  uniform,  whether  it  operates 
in  particular  cases  in  favor  of  one  or  another  party ;  for  it  may 
operate  against  the  assured  in  a  question  respecting  a  return  of 
premium  where  there  has  been  no  loss,  if  he  is  conclusively  pre- 
sumed to  have  insured  whatever  interest  he  might  have ;  and  the 
same  conclusive  presumption  operates  against  the  underwriter  in 
case  of  loss.  If  the  assured  may  prove  that  the  policy  was  intended 
for  an  interest  which  he  never  realized,  for  the  purpose  of  recover- 
ing back  his  premium,  the  underwriter  must,  in  like  manner,  have 
the  liberty,  in  order  to  avoid  liability  for  a  loss,  of  proving  that  the 
policy  was  not  intended  for  the  interest  on  which  the  assured  makes 
his  claim. 

The  jurisprudence  on  this  subject  is  contradictory.  In  respect 
of  a  claim  for  return  of  premium,  it  was  held  by  a  majority  of  the 


1  Lawrence  v.  Columbian  Ins.  Co.,        2  Murray  v.  Columbian  Ins.  Co.,  11 
2  Tcters's  S.  C.  11.  25;  and  Irving  v.    Johns.  302. 
Richardson,  2  B.  &  Ad.  ir"> 


CHAP.  IV.]  DESCRIPTION   OF   TUE   ASSURED.      '  219 

court  in  New  York,  that  the  assured  might  entitle  himself  to  a 
return  by  showing  that  the  policy  was  made  through  mistake,  the 
party  who  effected  it  having  no  interest  himself  and  no  authority 
to  insure  for  others,  who  were  named  in  the  policy  as  assured. 
Mr.  Justice  Kent  dissented.^ 

In  a  case  in  an  English  court,  a  cargo  was  consigned  to  C.  as 
purchaser,  with  orders  to  pay  the  price  to  W.,  the  general  agent 
of  the  consignor,  the  balance  in  whose  favor  exceeded  the  amount 
of  the  shipment.  The  bill  of  lading  and  invoice  were  transmitted 
to  W.,  with  orders  to  deliver  them  to  C,  that  he  might  get  insur- 
ance, on  his  accepting  a  bill  for  the  price.  C.  refused  the  con- 
signment. Thereupon  W.  effected  a  policy,  as  well  in  his  own 
name  as  for  and  in  the  name  of  every  other  person  to  whom  the 
same  might  appertain.  It  was  held  by  Duller,  Heath,  and  Rooke, 
Justices,  that  the  policy  could  be  applied  either  to  the  interest  of 
W.  or  to  that  of  the  consignor.^ 

In  a  case  before  Savage,  C.  J.,  and  his  associate  justices  of  the 
Supreme  Court  of  New  York,  the  owner  of  five  sixths  of  a  ship 
effected  insurance  upon  it  in  his  own  name,  the  space  in  the  policy 
for  inserting  "for  whom  it  may  concern,"  or  the  names  of  other 
parties,  being  left  blank,  intending  that  the  owner  of  the  other 
sixth  should  be  interested  in  like  proportion  in  the  policy,  in  case 
he  should  take  the  same  proportion  of  the  cargo,  which  he  declined 
to  do.  On  a  loss  having  been  paid  to  the  assured  of  the  whole 
amount  insured  on  the  ship,  not  exceeding  the  value  of  the  assured's 
five  sixths,  the  other  part-owner  claimed  one  sixth  of  the  amount 
paid.     The  court  rejected  his  claim.^ 

The  intention  of  insuring  for  the  benefit  of  the  owner  of  the  one 
sixth  was,  at  the  most,  merely  conditional.  The  court,  however, 
in  deciding  the  case,  put  it  upon  the  general  groutid,  that  no  addi- 
tion to,  or  interpolation  in,  the  policy  can  be  made,  on  parol  testi- 
mony ;  in  other  words,  that  in  such  case  the  amount  of  the  assured's 
interest  to  which  the  policy  is  applicable  cannot  be  determined, 


^  Steinback    v.  Rhinelander,    and        2  Wolff  v.  Horncastle,  1  B.  &  P. 
same  plaintiff  v.  Church,   3   Johns.     316. 
Cas,  269.  3  Turner  v.  Burrows,  5  Wend.  541. 


220  THE   PARTIES.  [CHAP.  IV. 

by  proof  of  intention,  to  be  different  from  what  the  policy  itself 
imports. 

In  other  cases  a  contrary  doctrine  is  maintained,  namely,  that 
the  application  of  an  insurance  expressed  in  the  policy  to  be  by  or 
for  a  particular  party,  is  to  be  applied  to  one,  or  another,  or  all  of 
the  different  interests  he  may  have  in  the  subject,  to  which  the 
policy,  by  its  terms,  may  be  applicable,  according  to  the  intention 
in  effecting  it ;  which  intention  may  be  proved  aliunde. 

An  assured  effected  a  policy  on  a  cargo  from  Virginia  in  his 
own  name  merely,  expecting  one  to  be  shipped  by  his  agents 
there.  They  shipped  and  consigned  to  him  a  cargo  on  their  own 
account  and  risk,  for  the  voyage  described,  on  the  proceeds  of 
which,  after  the  same  had  come  into  his  hands,  he  would  have 
had  a  lien  for  his  balance  of  account.  He  received  notice  of  the 
shipment,  and  of  the  loss  of  the  cargo,  and  orders  to  insure  it,  at 
the  same  time.  It  was  decided  in  Massachusetts,  that  he  could 
not  avail  himself  of  his  policy  on  his  interest  as  consignee  entitled 
to  a  lien,  on  the  ground  that  he  had  intended  its  application  to  his 
expected  interest  as  owner.^ 

So  in  a  case  in  the  K.  B.  in  England,  advances  being  made  by 
consignees  in  Liverpool  on  a  cargo  of  wheat  and  pease  from  New 
York,  they  made  insurance  upon  it  in  their  own  names  "as  inte- 
rest might  appear."  The  cargo  was  detained  by  the  American 
embargo  of  December,  1807.  The  assured  charged  the  premium 
to  the  consignors.  Lord  Ellenborough  and  his  associates  decided 
against  the  claim  of  the  assured  for  a  loss,  on  the  ground  that  they 
could  not  recover  on  the  interest  of  the  consignor,  since  the  act  of 
his  government  in  imposing  the  embargo  was  imputed  to  him,  and 
he  conld  not  be  indemnified  against  his  own  acts  ;  and  that  they 
could  not  recover  on  account  of  their  own  interest,  on  the  ground, 
"that,  where  a  policy  is  effected  in  behalf  of  a  consignor,  the  con- 
signee is  not  at  liberty  to  apply  it  to  his  own  interest."  ^  In  other 
words,  it  might  be  shown  by  evidence  aliunde,  namely,  the  charg- 

•  'roi)pan  r.  Atkinson.  2  IMass.  R.  Conway  f.  Forbes,  10  East,  539.  See 
3C5.  also  Donath  v.  Ins.  Co.  of  North  Ame- 

8  Conway  v.  Ciray,  10  East,  530,  and     rica,  4  Dall.  4G3. 


CHAP.  IV.]  DESCRIPTION   OF   THE  ASSURED.  221 

ing  of  the  premium,  that  the  insurance  was  intended  on  account  of 
the  consignor,  and  being  so  intended  the  assured  could  not  apply 
it  to  their  own  interest. 

So  in  another  case,  it  was  held  by  Lord  Tenterden  and  his  asso- 
ciates, that  the  application  of  a  policy,  made  in  the  name  of  a 
mortgagee,  to  his  interest  only,  or  to  his  and  also  that  of  the  mort- 
gager, that  is  to  say,  to  the  whole  value  of  the  subject,  depends 
upon  his  intention.^  The  court  considered  that  he  was  authorized 
to  insure  the  full  value. 

The  question  we  are  examining  has  been  elaborately  discussed 
by  Judge  Duer,^  who  concludes,  "  that  except  in  cases  of  fraud  or 
misrepresentation,  an  inquiry  into  the  specif  c  interest  that  a  party 
effecting  a  policy  in  his  own  name  meant  to  insure,  is  never  to  he 
permitted^  That  is  to  say,  if  the  assured  has  an  interest,  of  what- 
ever species,  answering  to  the  description  of  the  subject  in  the 
policy,  and  at  risk  within  the  description  of  the  risks,  he  is  liable 
for  the  premium,  and  the  underwriters  are  liable  for  the  loss,  what- 
ever may  have  been  his  intention  as  to  the  species  of  interest  to 
which  the  policy  was  to  be  applied. 

It  is  not  easy  to  say  on  which  side  of  this  question  is  the  greater 
weight  of  judicial  authority.  The  application  of  the  policy  to  one 
or  another  interest  of  the  same  party  is  subject  to  greater  objec- 
tions than  its  application  to  a  third  party  under  the  clause  "  for 
whom  it  may  concern  ; "  since  the  underwriter  has  notice  by  the 
terms  of  the  policy  of  the  interest  of  a  third  party,  whereas  in  a 
policy  in  favor  of  a  party  named,  without  more,  he  has  no  such 
intimation.  This  renders  it  a  case  more  proper  for  a  rigid  con- 
struction according  to  the  terms  of  the  policy,  which  would  exclude 
all  evidence  of  intention,  whether  offered  on  the  part  of  the  assured 
or  the  underwriters,  to  divert  the  policy  from  an  application  to 
whatever  subject  or  interest  it  is  applicable  to  by  its  terms.  I 
accordingly,  concur  with  Judge  Duer  in  the  above  doctrine. 

394.  Where  the  policy  is  on  a  subject  generally,  without  spe- 

1  Irving  V.  Eichardson,  2  B.  &  Ad.        2  Marine  Insurance,  Vol.  II.  p.  39, 
103.  &c.,  Lect.  9,  s.  26-29. 

19* 


222  THE   PARTIES.  [cHAP.  IV. 

cifying  the  interest  particularly,  it  toill  still  be  available  to  the 
assured,  though  he  cha7iges  his  interest  to  one,  in  the  same  subject, 
that  would  be  covered  under  a  like  general  designation,  as  where 
his  interest  as  owner  is  changed  to  that  of  mortgagee.^ 

395."  In  a  policy  for  an  owner  and  party  having  a  lien,  the 
policy  is  applied  to  the  interest  of  each  commensurately  with  its 
amount.^ 

396.  In  case  of  a  policy  by  which  divers  parties  are  insured  on 
distinct  interests,  the  question  arises  as  to  their  remedies  being  dis- 
tinct, to  the  same  effect  as  if  the  insurance  had  been  by  separate 
policies.  There  evidently  are  difficulties  in  the  way  of  divers 
actions  at  law  by  divers  parties  insured  in  one  policy  under  the 
description  ''for  whom  it  may  C07icer7i."  But  if  the  same  policy 
insures  different  individuals  certain  amounts,  each  on  the  same  or 
on  different  subjects,  the  policy  itself  purports  to  contain  divers 
distinct  contracts,  which  are  the  subjects  of  distinct  independent 
remedies  at  law. 

Where  two  persons  were  insured  on  a  life  in  the  same  policy, 
it  was  held  that  they  might  have  separate  remedies.^ 

397.  A  debtor  ivho  pays  a  premium  on  a  policy  on  his  life 
made  in  the  name  and  in  favor  of  his  creditor,  as  collateral  secu- 
rity, and  the  owner  of  any  subject  pledged  and  so  insured,  has  an 
interest  in  the  policy,  though  he  is  not  directly,  in  express  terms, 
or  by  description  in  the  policy,  a  party  to  it. 

A  debt  having  been  paid  by  the  debtor's  executor.  Lord  Ellen- 
borough  ruled  that  the  executor  of  the  creditor  should  pay  over 
the  amount  received  on  account  of  a  loss  on  a  policy  made  by  his 
testator,  on  the  debtor's  life,  the  premium  for  which  he  had  charged 
to  the  debtor.'' 

In  a  case  of  a  life  insurance  by  a  creditor.  Sir  Thomas  Plumer 
decreed  that  liic  representatives  of  the  debtor  were  indirectly  inte- 
rested in  the  policy,  though  he  did  not  pay  the  premium,  and  was 

'  Stetson  V.  Mass.  Fire  &  Mar.  Ins.        3  M'Cormick  v.  Ferrier,  Hayes  & 
Co.,  4  Mass.  11.  330  ;  Bell  v.  Western     Jones's  11.  1 2. 
Mar.  &  Fire  Ins.  Co.,  5  Hob.  La.  R.  424.        4  Holland  v.  Smith,  G  Esp.  11. 

'■^  Paradise  i'.  Sim  Ins.  Co.  7  La.  An- 
nual lveport.s. 


CHAP.  IV.]  DESCRIPTION   OF   THE  ASSURED.  223 

not  privy  to  the  policy.  The  debtor  and  his  wife  had  assigned  to 
two  of  his  creditors  her  right  to  four  hundred  dollars  in  case  of  her 
surviving  her  mother,  as  collateral  security,  surplus,  if  any,  pay- 
able to  the  debtor.  She  died  first,  and  a  loss  was  paid  to  the  two 
creditors.  On  the  insolvency  of  the  debtor,  they  claimed  to  prove 
their  whole  demands  against  his  effects  in  the  hands  of  the  as- 
signees. The  Vice-Chancellor  decreed  that  they  should  deduct 
the  net  amount  received  from  the  insurers.^  That  is,  the  creditors 
being  trustees  of  the  contingent  right  so  assigned  to  them,  he  con- 
sidered them  as  having  effected  the  insurance  in  that  capacity.  The 
decision  is  questionable,  however,  as  it  does  not  appear  that  they 
could  have  charged  the  premium  to  the  debtor,  which  they  could 
have  done  if  the  insurance  had  been  authorized  in  their  capacity 
of  trustees.  The  construction  alternative  to  that  put  by  the  Vice- 
Chancellor  is,  that,  in  case  of  surplus  over  their  demands  by  the 
dividends  and  amount  received  on  the  policies,  they  would  have 
been  accountable  to  the  insurers  for  it  in  the  nature  of  salvage. 

398.  Under  a  policy  in  the  name  of  the  mortgagee  ^'for  whom 
it  may  concern,^  the  same  being,  in  fact,  for  the  benefit  of  the 
mortgagee  to  the  amount  of  his  interest,  surplus,  if  any,  on  account 
of  the  mortgager,  both  the  mortgagee  and  mortgager  are  parties 
to  the  policy  and  ^'assureds.^^ 

In  a  policy  on  freight  effected  in  the  name  of  the  assignees  of 
"the  freight  list,"  expressed  to  be  "for  whom  it  might  concern," 
on  their  own  account,  and  on  that  of  the  assignor,  who  was  owner 
of  the  vessel,  barratry  of  the  master  was  insured  against,  "unless 
the  assured  was  owner  of  the  vessel."  The  question  arose,  whether 
this  exception  was  applicable  to  the  assignees  of  the  freight  list, 
to  whom  it  had  been  assigned  as  security  for  advances,  it  being 
agreed  by  the  parties  at  the  same  time,  that  the  assignees  should 
insure  for  their  own  account  to  the  amount  of  their  advances, 
surplus,  if  any,  for  account  of  the  assignor.  The  premium  was 
charged  to  the  assignor,  and  any  payment  of  loss  on  the  policy, 
and  other  policies  assigned  to  the  same  assignees,  was  to  go  in 
discharge  of  the  balance  due  from  him.     It  was  held  in  Louisiana 

1  Ex  parte  Andrews,  2  Rose,  410 ;  S.  C,  1  Mad.  572 ;  S.  C,  Ellis,  Ins.  157. 


224  THE   PARTIES.  [cHAP.  IV. 

that  the  assignees  of  the  freight  were  to  be  considered  the  "own- 
ers of  the  vessel"  in  reference  to  this  exception,  and  that  under 
the  policy  was  to  have  the  same  construction  in  this  respect  as 
if  it  had  been  in  the  owner's  name  ;  on  the  grounds,  first,  that 
the  policy  on  cargo,  which  the  owner  had  assigned  to  the  same 
assignees  in  the  same  instrument,  had  been  ordered  by  him  to  be 
insured  on  his  own  account ;  second,  that,  under  the  circumstances, 
the  intention  was  to  insure  exclusively  on  account  of  the  ship- 
owner ;  third,  that  the  assignees  stood  in  place  of  the  assignor  who 
was  shipowner ;  fourth,  because  the  whole  proceeds  of  the  policy 
were  to  go  for  the  benefit  of  the  shipowner,  in  discharge  of  his 
liability  for  advances,  and  by  payment  over  of  the  surplus,  if  any, 
to  him ;  fifth,  that  they  must  take  his  right  to  freight  subject  to  his 
liability ;  sixth,  that,  though  the  insurance  should  be  construed  to 
be  on  account  of  the  assignee  as  well  as  the  assignor  of  the  freight- 
list,  the  policy  was  indivisible,  and,  accordingly,  if  the  exception 
of  barratry  was  valid  against  the  assignor,  it  was  so  against  the 
assignees  ;  seventh,  that  as  no  disclosure  was  made  to  the  under- 
writers, of  the  particular  agreement  between  the  shipowner  and 
the  nominal  assured,  "they  had  just  reason  to  suppose  that  they 
were  dealing  with  the  owners  of  the  vessel,  or  with  parties  closely 
associated  in  interest  with  him,"  which  was  assumed  to  be  in  favor 
of  putting  the  same  construction  upon  the  policy  as  if  it  had  been 
expressed  to  be  effected  for  the  sole  benefit  of  the  shipowner ; 
eighth,  that  from  various  correspondence  and  transactions  between 
the  shipowner  and  his  agents,  it  appeared  that  the  policy  was 
intended  by  them  to  be  applied  to  the  interest  of  the  former.^ 

Most  of  these  positions  of  the  court  involve  questions  of  fact.^ 
In  respect  to  the  assignee  being  in  place  of  the  assignor  and  sub- 

1  Paradise  v.  Sun  Mutual  Ins.  Co.,  proved,  in  a  manner  equivalent  to  the 
supra,  7  La.  Annual  Reports.  ordinary   practice   in    courts   of  law 

2  According  to  tlic  judicial  system  where  a  case  is  reserved  with  express 
and  practice  in  Louisiana,  it  seems  authority  to  the  court  to  decide  on  the 
that  when  a  case  is  in  the  stage  in  evidence  and  make  all  the  inferences 
which  the  above  opinion  was  given,  from  the  facts  proved  which  a  jury 
the  court  may  take  cognizance  of  the  might  make. 

facts  and  make  inferences  from  those 


CHAP.  IV.]  DESCRIPTION   OF   THE  ASSURED.  225 

ject  to  his  liability,  the  doctrine  is  applicable  as  between  the  ship- 
pers and  the  assignees  of  the  freight-list,  but  not  necessarily  so 
between  such  assignee  and  his  underwriters.  Whether  the  lia- 
bility of  ownership  of  the  vessel  in  respect  of  third  persons  is 
imputable  to  a  party  having  an  interest  in  the  proceeds  of  the 
freight-list,  will,  it  seems,  to  many  purposes  at  least,  depend  upon 
his  supplying  the  provisions,  appointing  the  master,  employing 
and  paying  the  men,  and  having  control  of  the  vessel. ^  And  it 
does  not  appear  that  the  same  question  is  otherwise  determined 
in  respect  to  underwriters.  If  the  same  doctrine  affects  them, 
as  it  seems  to  do,  and  there  is  nothing  in  writing  to  determine 
who  are  owners  in  respect  to  them,  the  question  turning  wholly 
upon  the  construction  of  the  word  "owners,"  then  it  is  resolved 
into  a  matter  of  fact  for  the  jury.  The  question  of  presumption, 
or  not,  belongs  to  the  court.  It  seems,  however,  to  be  ques- 
tionable whether  there  is  a  presumption  that  an  applicant  for 
insurance  on  freight  is  owner  of  the  vessel,  and  if  there  is  such  a 
presumption,  it  can  be  at  most  but  prima,  facie,  and  subject  to  be 
rebutted,  which  would  still  bring  the  case  to  the  jury.  The  fourth 
and  sixth  grounds  of  the  decision  are  substantially  that  both  the 
assignor  and  assignee  of  the  freight  were  parties  to  the  policy,  and 
both  had  a  direct  interest  in  recovering  the  loss,  and,  therefore, 
that  the  owner  as  well  as  the  assignee  of  the  freight-list,  came 
within  the  description  of  "  the  assured,"  to  the  same  effect  in  putting 
a  construction  upon  the  policy,  as  if  they  had  been  both  of  them 
expressly  named  in  the  policy  as  the  parties  insured.  This  con- 
struction seems  to  be  a  proper  one,  and,  indeed,  free  of  all  doubt. 
It  cannot  be  supposed  that  the  exception  of  the  risk  of  barratry 
takes  effect  only  in  case  of  all  the  assureds,  who  are  interested  in 
recovering  the  same  loss,  being  owners  of  the  vessel  ;  therefore 

1  Thorn   v.  Hicks,  7  Cowen,  797,  sel  on  shares  is  held  to  be  so,  and  see 

■where  the  party  having  the  control  Abbott  on  Shipping,  by  Story,  p.  19, 

and  use  of  the  ship  under  an  agree-  and  note;  Parsons  on  Contracts,  657. 

ment  to  purchase  it,  is  held  to  be  The  management  and  control  of  the 

owner  as  to  third  persons  ;  and  Rey-  vessel,  in  the  above  case  of  Paradise  v. 

nolds  V.  Toppan,  15  Mass.  R.  370,  Sun  Mut.  Ins.  Co.,  appears  to  have 

■where  the  charterer  -who  took  the  vcs-  remained  ■with  the  owner. 


226 


THE   PARTIES. 


[chap.  IV. 


under  the  clause  excepting  the  risk  of  barratry  "  if  the  assured 
he  oivner/'  that  risk  is  excepted  if  either  of  the  parties  insured 
is  so. 

399.  A  mortgager  ivho  assigns  his  policy  as  collateral  security 
to  the  mortgagee,  continues  to  have  an  interest  in  the  policy,  as 
long  as  he  has  a  right  to  redeem,^  or  is  liable  for  the  debt? 

400.  So  where  a  judgment  creditor,  having  a  lien  on  real  estate, 
effects  insurance  thereon  for  himself  and  the  debtor,  the  latter  has 
an  interest  in  the  policy,  of  which  he  may  avail  himself  on  satisfy- 
ing the  judgment.^ 

401.  Where  a  depositary  insures  the  deposited  property,  in  his 
own  name,  in  pursuance  of  an  agreement  with  the  depositor  to  in- 
sure it  for  the  benefit  of  the  latter,  the  depositor,  as  between  these 
two  and  the  creditors  of  the  depositary,  U'ill  have  an  equitable  inte- 
rest in  the  policy,  equivalent  to  that  of  the  assignee  of  a  chose  in 
action.^ 

402.  A  tenant  who  pays  no  part  of  the  premium  has  no  interest 
in  a  policy  effected  by  the  landlord  on  the  leased  tenement,  unless 
it  is  so  agreed.^ 

But  if  the  tenant  pays  any  of  the  premium,  he  has  an  interest.^ 

403.  Where  a  policy  for  A  provides  that  a  loss  shall  be  payable 
to  B,  the  latter,  if  he  has  no  lien  on  the  policy,  is  not  a  party  to 
it  to  the  effect  of  giving  him  any  control.^ 

404.  The  original  assured  cannot  assert  any  interest  in  a  policy 
of  reinsurance.^ 


1  Rogers  v.  Traders'  Ins.  Co.,  and 
same  plaintiiT  v.  Howard  Ins.  Co.,  6 
Paige,  583. 

2  Gordon  v.  !Mass.  Fire  &  Mar.  Ins. 
Co.,  2  Pick.  2C0. 

3  Micklcs  V.  Kochester  City  Bank, 
11  Paige,  118. 

4  Providence  County  Bank  t".  Ben- 
BOn,  24  Pick.  204. 

5  Leeds  v.  Chectham,  1  Sim.  149. 
Stat.  19  Geo.  II.  c.  j7,  regulates  the 
interests  of  landlord  and  tenant  in  this 
respect  in  London.   Ellis,  Ins.  75.   For 


tenant's  liability  for  rent,  though  the 
building  is  burnt,  see  Sadlers'  Co.  v. 
Badcock,  2  Atk.  554 ;  Brown  v.  Quil- 
ter,  Ambl.  619  ;  Hare  v.  Groves,  3 
Anstr.  687  ;  Holtzapffel  v.  Baker,  18 
Ves.  115. 

6  Miltenbergher  v.  Beacom,  9  Penn. 
11.  198. 

■^  llogers  V.  Traders'  Ins.  Co.  and 
same  plaintiff  v.  Howard  Ins.  Co.,  6 
Paige,  583. 

8  Ileckenrath  v.  Am.  ^lut.  Ins.  Co., 
1  Barb.  Ch.  R.  363. 


CHAP.  IV.]  DESCRIPTION   OF   THE  ASSURED.  227 

405.  A  mortgagee  has  no  interest  as  such  in  an  insurance  by 
the  mortgager.^ 

Whether  either  of  the  parties  to  a  mortgage  is  a  party  to  a  policy 
effected  by  the  other,  will  depend  upon  their  agreement  and  the 
provisions  of  the  policy .- 

406.  The  seamen  have  no  interest  in  the  owner^s  policy  on  freight 
on  account  of  their  wages,^  thought  freight  is  said  to  be  the  mother 
of  wages,  and  insurance  is  indemnity  for  the  loss  of  it.  One  rea- 
son is,  that  the  policy  is  inter  alios  ;  another,  that  giving  them  such 
an  interest  would  be  in  effect  permitting  their  insurance  of  wages, 
which  are  not  insurable  by  them. 

407.  A  policy  in  favor  of  A  '■'■for leaving  a  hlanTc 

space  in  the  line  instead  of  inserting  for  whom,  is  equivalent  to 
one  for  whom  it  may  concern,  if  the  hlanTc  is  to  he  filled  at  all.^ 
The  Supreme  Court  of  New  York  decided  that  the  blank  was  not 
intended  to  be  filled  in  the  policy  in  question.^ 

408.  Insuring  "as  agent"  for  a  particular  person,  is  equiva- 
lent to  insuring  "  on  his  account." 

M.  insured  a  vessel  and  cargo  "as  agent  of  R.,"  without  any 
general  description  of  the  assured.  R.  had  given  M.  instructions 
to  obtain  insurance,  but  the  property  in  fact  belonged  to  E.  Chief 
Justice  Parsons  and  his  associates  were  of  opinion,  that,  "  from 
the  import  of  the  words  of  the  policy,  and  from  the  necessary  con- 
struction of  it,  no  person  was  insured  from  loss  but  R. ; "  and  de- 
cided that  R.  could  recover  nothing  under  the  policy  for  the  bene- 
fit of  E.^ 

A  policy  made  by  a  person,  "as  agent  for  H.,"  who  was  inte- 
rested in  a  cargo  owned  by  himself  and  four  others  not  his  part- 
ners, was  held  to  apply  only  to  H.'s  interest.'' 


1  Carter  v.  Rocket  and  New  York  4  Per  Chancellor  Walworth,  Tur- 
Ins.  Co.,  8  Paige,  437  ;  Macdonald  v.  ner  v.  Burrows,  in  Court  of  Errors,  8 
Black,  20  Ohio  R.  183.    This  last  case  Wend.  144. 

relates  to  a  mortgagee  not  in  posses-  ^  S.  C,  5  Wend.  541. 

sion,  but  the  doctrine  is  equally  true  6  Russell  v.  N.  E.  Marine  Ins.  Co., 

in  respect  to  one  in  possession.  4  Mass.  R.  82. 

2  See  No.  296,  379.  7  Holmes  r.  United  Ins.  Co.,  2  Johns. 

3  Icard  V.  Goold,  11  Johns.  279.  Cas.  329. 


228  THE   PARTIES.  [CHAP.  IV. 

409.  If  the  nominal  assured  be  described  in  the  policy  as  agent 
generally,  without  saying  for  whom,  it  may  be  shown  whose  inte- 
rest ivas  intended  to  be  insured,  in  the  same  manner  as  if  the 
policy  had  contained  the  general  clause  "  for  whom  it  may  concern." 
Where  the  assured  were  described  in  the  following  manner,  "D.,  or 
as  agent,  doth  insure,"  &c.,  on  vessel  and  cargo,  there  were  three 
owners,  and  the  policy  was  intended  to  cover  the  interest  of  two 
of  them.  Jackson,  J.,  giving  the  opinion  of  the  court,  said  :  "  This 
insurance  was  in  truth  made  for  the  benefit  of  D.  and  R.,  and  we 
see  no  difficulty  in  carrying  that  intention  into  effect.  When  the 
underwriter  agreed  to  insure  for  D.  as  agent,  either  he  was  in- 
formed that  R.  was  the  principal,  or  he  waived  all  information  on 
the  subject."  ^ 

A  jjolicy  insuring  a  person  interested,  or  authorized  as  owner, 
agent,  or  otherwise,  is  considered  by  Lord  Campbell  and  his  asso- 
ciates to  be  equivalent  to  one  ^'for  whom  it  may  concern.^'  ^ 

410.  Where  the  whole  interest  in  a  policy  has  passed  by 
assignment  of  it  for  a  valuable  consideration,  and  notice  thereof 
is  given  to  the  underwriter,  the  assignor  ceases  to  be  a  party  to 
it  for  any  other  purpose  than  the  use  of  his  name  by  the  assignee 
in  proceedings  upon  it.^ 

Defences  subsisting  against  the  assignor  at  the  time  of  the 
assignment  are  still  good,  but  after  the  assignment  he  cannot  pre- 
judice the  assignee  by  subsequent  confessions,  and  is  not  a  com- 
petent witness  in  favor  of  the  underwriter ;  and  his  release  given 
after  notice  to  the  underwriter  is  void,  and  payment  to  him  after 
notice  is  no  defence  against  the  claim  of  the  assignee. 

411.  Where  there  arc  divers  persons  answering  to  the  descrip- 
tion of  the  assured,  the  policy  is  applied  to  the  interest  of  the 
party  for  whom  it  was  intended,  and  by  whose  order  it  was 
effected.     Where  the  assured  was  described  to  be  J.  B.  C,  in  a 

1  Davis  V.  Boardman,  12  Mass.  11.  Eng.  Law  Jur.  (n.  s.)  Queen's  Bench, 
80.     Sec  Hil)burt  v.  Martin,  1  Camp.     417. 

538.  3  Ilackett  v,  Martin,  8  Grcenl.  77, 

2  Suiiderlaiiil  Mar.  Ins.  Co.  v.  Kear-  and  cases  there  cited  ;  and  see  juris- 
ney,  6  Kng.  Law  &  Eq.  11.  (Press  of  prudence  respecting  assignments  of 
Little,  Brown  &  Co.)  312;  S.  C,  20  choses  in  action,  passim. 


CHAr.  IV.]  DESCllIPTION   OF   THE   ASSURED.  229 

policy  effected  by  him,  but  at  the  request  and  on  account  of  J.  B. 
C.  Jr.,  the  contract  was  apphed  to  the  interest  of  the  latter.^ 

412.  In  a  case  upon  a  fire  poHcy  upon  goods,  "as  well  the 
property  of  the  assured,  as  held  by  them  in  trust,  or  on  commis- 
sion," Mr.  Justice  Oakley  said  :  "TAe  words,  'goods  held  in  trust 
or  on  commission,^  are  equivalent  to  the  clause,  'for  whom  it  may 
concern,^  usually  inserted  in  marine  policies.  They  contain  a  dis- 
tinct declaration  that  the  assured  were  acting  for  the  benefit  of 
their  consignors."  ^ 

413.  Whether,  under  a  policy  effected  by  an  assured  as  agent 
or  trustee,  the  principal  is  subrogated  merely  to  the  rights  which 
the  agent  would  have  had  as  princi'pal,  and  is  subject  to  like  set- 
off and  other  defences  ? 

It  was  held  by  Denman,  C.  J.,  and  his  associates  of  the  King's 
Bench  in  England,  that  such  defence  will  avail  the  underwriter  in 
a  suit  at  law  on  a  policy  effected  in  the  name  of  a  party  declared 
in  the  policy  to  be  "interested  or  duly  authorized  as  agent,"  which 
is  equivalent  to  "for  whom  it  may  concern,"^  unless  the  court 
has,  on  application,  previously  ordered  otherwise.  But  the  Ame- 
rican courts  have  decided  directly  to  the  contrary,  namely,  that 
in  a  suit  at  law,  on  a  policy  in  the  name  of  an  agent,  declared 
to  he  for  the  benefit  of  the  principal,  the  underwriter  cannot  set 
off  his  demands  against  the  nominal  assured.'^ 

413  a.  Neither  party  to  a  policy,  whether  original  or  by  assign- 
ment, can,  without  the  consent  of  the  other,  exonerate  himself  of 
his  liabilities  to  the  other  upon  it,  and  cease  to  be  a  party  to  it,  by 
subrogation  of  a  third  in  his  place. 

Where  a  life  insurance  company  proposing  to  disengage  itself 
from  its  liabilities  agrees  with  another  company  to  assume  its  risks, 
it  still  remains  liable.^ 


1  Church  V.  Hubbart,  2  Ci-anch,  187.  clfic  Ins.  Co.,  2  Sumner,  471 ;  Gordon 

2  De  Forest  v.  Fulton  Fire  Ins.  Co.,  r.  Church,  2  Caines,  299, inNew York; 
1  Hall's  E.  84.  per  Woodbury,  J.,  in  Aldrich  v.  Equi- 

3  Gibson  v.  Winter,  5  B.  &  Ad.  96 ;  table  Ins.  Co.,  1  Woodbury  &  Minot, 
and  see  also  Wilkinson  v.  Lindo,  7  M.  272. 

&  W.  405.  5  Atkinson  v  Gilby,  13  Eng,  Law 

4  Per  Story,  J.,  in  Hurlbutt  v.  Pa-  &  Eq.  R.  (Press  of  Little,  Brown  & 

VOL.  I.  20 


230  THE  PARTIES.  [CHAP.  IV. 

So  where  a  mutual  fire  insurance  company  voted  that  in  cases 
of  premium  notes  on  a  policy  not  being  punctually  paid,  the  risk 
on  the  policy  should  be  suspended,  was  held  not  to  affect  the 
claims  of  an  assured  on  a  policy  previously  issued,  unless  it  was 
assented  to  by  hini.^ 

414.  The  application  of  the  proceeds  of  a  policy  will  he  made 
in  the  manner  most  hcneficial  to  the  assured. 

A  being  entitled  to  an  annuity  during  the  lives  of  B  and  C, 
and  the  survivor  of  them,  a  policy  was  effected  in  his  behalf  on 
one  of  the  lives,  which  having  dropped,  the  question  arose  whether 
the  proceeds  should  be  applied  in  discharging  the  arrears  of  the 
annuity,  which  would,  in  effect,  be  so  much  in  relief  of  the  grantor 
of  the  annuity.  Lord  Chancellor  Sugden  decreed  against  such 
application,  and  in  favor  of  its  going  to  the  annuitant  directly,  as 
an  indemnity  for  the  diminution  of  the  value  of  the  annuity,  by  the 
dropping  of  one  of  the  lives.^ 

Co.)  209  ;  S.  C,  21  Eng.  Law  J.  E.        2  MlUikin  v.  Kidd,  4  Drury  &  War- 
(n.  s.)  Chancery,  848.  ren,  274. 

1  New  England  Mut.  Fire  Ins.  Co. 
V.  Butler,  Sup.  Ct.  of  Maine,  1853. 


CHAPTER   V. 


DESCRIPTION   OF  THE   SUBJECT. 


Sect.  1.  Description  of  the  subject  in 
general.  —  Of  different  kinds  of 
interest,  as  owner,  mortgagee, 
&c. 
2.  Cargo,  goods,  wares,  merchan- 
dise, property. 


Sect.  3.  Profits. 

4.  Ship. 

5.  Freight. 

C.  Subject  of  fire  policies. 

7.  Of  fishing  voyages. 

8.  Of  reinsurance. 


SECTION  I.       DESCRIPTION    OF    THE    SUBJECT    IN    GENERAL. DIF- 
FERENT   KINDS    OF    INTEREST,    AS    OWNER,    MORTGAGEE,    ETC. 

415.  It  is  necessary  that  the  thing  insured,  and  in  some  cases 
also  the  Jcind  of  interest  intended  to  be  protected,  should  be  suffi- 
ciently set  forth  in  the  policy,  or  that  the  policy  should  at  least 
prescribe  the  way  of  ascertaining  to  what  the  contract  is  to  be 
applied.  As  the  contract  will  embrace  no  other  subject  than  that 
described,  its  validity  will  depend  upon  the  sufficiency  of  the  de- 
scription.^ 

A  policy  on  "piece  goods"  cannot  be  applied  to  "hats  ;"^  nor 
one  on  "oil  and  barilla"  to  "soap." 

Emerigon  thinks  a  policy  on  "ingots  of  gold"  may  be  applied 
to  gold  "coins"  and  "utensils,"  because  they  might  be  made  into 
ingots  without  changing  the  substance.^  This  seems,  however,  to 
be  a  somewhat  fanciful  reason. 

Some  marine  ordinances  require  that  goods  subject  to  extraordi- 
nary risks,  as,  for  instance,  contraband  of  war,  shall  be  specifically 
described  in  the  policy,  that  the  underwriter  may  be  apprised  of 
the  risk  ;^  and  a  policy  on  "goods"  or  "merchandise"  or  "  cargo" 
generally,  would,  accordingly,  not  cover  such  property.     Neither 


1  Langhorn  v.  Cologan,  4  Taunt.         3  Tom.  I.  pp.  299,  800,  c.  10,  s.  3. 
330 ;  Cteriot  v.  Barker,  2  Johns.  346.         4  i  Magens,  9,  s.  14  ;  4  Pick.  434  ; 

2  Hunterz;.Prinsep,Marsli.Ins.316.     Weskett,  tit.  Goods. 


232  DESCRIPTION   OF   THE    SUBJECT.  [CHAP.  V. 

the  laws  of  England,  nor  those  of  the  United  States,  make  any 
special  provisions  on  this  subject,  yet  it  has  been  held  in  both 
countries  that  certain  kinds  of  property,  as  live  stock,  for  instance, 
are  not  insurable  under  such  general  descriptions.^ 

A  description  of  goods,  freight,  a  ship,  house,  or  other  thing  in- 
sured, by  which  it  may  be  distinguished  and  identified,  will,  gene- 
rally be  sufficient. 

416.  If  one  own  a  half  or  any  other  ^proportion  of  a  ship  or 
of  goods,  he  may  effect  insurance  generally  without  specifying 
his  interest,  and  he  loill  recover  for  such  interest  as  he  has? 

417.  An  insurance  in  the  name  of  A  merely,^  or  "  for  account " 
of  A,*  or  of  A  "  as  property  may  appear,"  ^  is  applicahle  only  to 
his  interest.^ 

418.  An  insurance  in  the  name  of  A  and  B  without  more,  is 
held  by  the  English  King's  Bench  and  Common  Pleas,  not  to  be 
applicable  to  the  sole  absolute  interest  of  AJ* 

419.  A  charterer  of  a  ship  or  other  party  having  the  rightful 
possession  and  use  of  a  thing  under  an  agreement  to  pay  for  all 
losses  and  repairs,  has  an  insurable  interest,  ivhich  may  be  covered 
by  a  policy  in  his  own  name  generally,  without  specifying  the 
Icind  of  interest. 

The  owner  of  one  half  of  a  schooner  chartered  the  other  half, 
with  an  agreement  to  pay  for  it  in  case  of  loss.  A  policy  upon  it 
generally,  not  specifying  his  interest,  was  held  to  be  applicable  to 
its  whole  value.^ 

420.  An  assignee  of  any  subject  for  a  valuable  consideration, 
having  a  lien  upon  it,  and  the  possession  or  control  and  disposition 


1  See  infra,  s.  2.  5  Graves  v.  Boston  Mar.  Ins.  Co.,  2 

2  Lawrence  r.  \a,n  Ilorne,  1  Caines,  Cranch,  419. 

276;  Murray  v.  Columbian  Ins.  Co.,  c  Sec  supi-a.  No.  380. 
11    Johns.   302;   Rising  v.  Burnett,  ^  Bell  r.  Ansley,  16  East,  141 ;  Co- 
Marsh.  730 ;   Lawrence  r.  Scbor,  2  hen  v.  Hannam,  5  Taunt.  101. 
Caines,  203  ;  Toppan  v.  Atkinson,  2  ^  Oliver  v.  Greene,  3  Mass.  R.  133. 
Mass.  R.  .'K;rj ;  1  Kmcr.  293,  c.  10,  s.  1.  Sec  also  Bartlctt  v.  Walter,  13  Mass. 

3  Cohen  v.  Ilaniiam,  .0  Taunt.  101.  R.  267. 

4  Kenililc  V.  Khiiulandur,  3  Johns, 
Cas.  130. 


SECT.  I.]       DESCRIPTION    OF   THE    SUBJECT   IN    GENERAL.  233 

of  it,  may  insure  it  under  a  general  description  without  specifying 
his  interest.^ 

421.  A  mortgagee  may  insure  the  mortgaged  subject  generally, 
tvithout  specifying  his  interest  to  consist  in  a  mortgager 

A  supercargo  having  assigned  his  commissions  and  the  proceeds 
of  them  as  security  for  money  advanced  to  him,  the  assignee 
effected  insurance  upon  them,  under  the  description  of '<  commis- 
sions of  F.  out,  and  proceeds  of  said  commissions  homewards," 
not  specifying  the  assignment.  It  was  held  that  the  policy  pro- 
tected his  interest.^ 

42-2.  A  trustee  having  the  title  to  property,  and  the  possession 
and  management  of  it,  may  insure  it  in  his  oivn  name  ivithout 
specifying  his  interest.'^ 

By  the  laws  of  Louisiana,  the  husband  having  the  trust  and 
management  of  the  wife's  property  may  so  insure  it.^ 

423.  So  a  consignee  or  oiher  party  entitled  to  a  lien  upon  pro- 
perty, on  account  of  advances  or  otherwise,  may  cover  his  own 
interest  by  insurance  upon  it  in  his  own  name  generally,  without 
specifying  it,  unless  there  is  some  provision  in  the  policy  to  the 
contrary.*^ 

Policies  sometimes  require  such  interests  to  be  specified.'^ 

424.  The  interest  of  carriers  in  consequence  of  their  liability 
to  the  owners  of  the  goods  carried,  may  be  insured  under  a  gene- 

•  Paradise  v.  Sun  Mut.  Ins.  Co.,  6  same  plaintiff  v.  Firemen's  Ins.  Co.,  3 

La.  Annual  Reports.  id.  423,  428. 

2  Russel  V.  Union  Ins.  Co.,  1  Wash.  ^  Clarke  v.  Firemen's  Ins.  Co.,  18 
C.  C.  R.  409.  La.  R.  431. 

3  Wells  V.  Philadelphia  Ins.  Co.,  9  6  Carruthers  v.  Sheddon,  6  Taunt. 
Serg.  &  R.  103.  See  also  Irving  v.  14 ;  S.  C.  1  Marsh.  R.  416 ;  Wolff  v. 
Richardson,  2  B.  &  Ad.  193,  and  see  Horncastle,  1  B.  &  P.  316  ;  and  see 
casescited  toNo.  432;  Columbian  Ins.  supra,  c.  4,  No.  380,  392.  The  case 
Co.  V.  Lawrence,  2  Petcrs's  S.  Ct.  R.  of  Toppan  v.  Atkinson,  2  Mass.  R. 
25,  has  a  contrary  aspect,  but  the  bet-  365,  is  opposed  to  the  doctrine  stated 
ter  doctrine  seems  to  be  as  stated  in  in  the  text,  but  the  authority  of  that 
the  text.  case  may  well  be  questioned. 

4  Stetson  V.  Mass.  Fire  &  Mar.  Ins.  7  As  in  the  New  York  policies. 
Co.,  4  Mass.  R.  330 ;  Bell  v.  Western  Brichta  v.  N.  Y.  La  Fayette  Ins.  Co., 
Mar.  &  Fire  Ins.  Co.,  5  Rob.  R.  (La.)  2  Hall,  372. 

423,  overruling  Bell  v.  Western,  and 
20* 


234  DESCRIPTION    OF   THE    SUBJECT.  [CHAP.  V. 

ral  description  of  the  goods,  without  specifying  the  particular 
interest  intended  to  be  covered. 

Insurance  was  made  on  "  canal  navigation  boats,  containing 
goods,  at  work  between  London,  Wolverhampton,  Birmingham, 
&c.,  backwards  and  forwards,  £12,000  on  goods  as  interest  might 
appear."  Some  goods  were  damaged  in  consequence  of  the  sink- 
ing of  a  boat,  and  the  carriers  were  obliged  to  pay  the  damage. 
In  a  suit  to  recover  this  loss  against  the  underwriters,  it  was  held 
that  this  was  a  sufficient  description.  Lord  Tenterden,  C.  J.  : 
"Although  the  subject-matter  of  insurance  must  be  properly  de- 
scribed, the  nature  of  the  interest  may  in  general  be  left  at  large. 
Here  the  subject-matter  is  sufficiently  described.  It  would  have 
been  better  if  the  instrument  had  expressly  shown  that  the  object 
was  to  indemnify  the  assured  as  carriers,  still  I  think  it  is  suffi- 
cient."^ This  is,  in  effect,  a  reinsurance,  as  the  carriers  may  be 
considered  to  be  insurers. 

425.  A.  vessel  being  agreed  to  he  sold,  hut  to  remain  registered 
in  the  vender^ s  name,  as  security  for  the  price,  the  purchaser  may 
insure  it  to  its  full  value  in  his  own  name  under  a  general  de- 
scription? 

426.  An  owner  ivho  has  mortgaged  a  vessel  or  any  other  pro- 
perty may  insure  it  to  its  full  value  under  a  general  description.^ 
And  so  the  mortgaging  of  an  owner's  partial  interest  in  any  pro- 
perty will  not  prevent  him  from  insuring  his  interest  in  like  man- 
ner. 

427.  ^Vhether  a  lender  on  bottomry  or  respondentia  must  de- 
scribe his  particular  interest  as  such  in  the  policy.^ 

Lord  Mansfield  says,  "  he  could  not  find  even  a  dictum  in  any 
writer,  foreign  or  domestic,  that  the  respondentia  creditor  may  in- 
sure on  goods,  'as  goods,'  and  that  it  was  established  now  as  the 

1  Crowly  V.  Cobcn,  3  B.  &  Ad.  478.  v.  Nortli  American  Ins.  Co.,  13  Mass. 
Sec  also  Natta  v.  ]\Iutual  Security  Ins.     R.  01. 

Co.,  2  Sandf.  N.  Y.  City  R.  490.  4  Williams  v.  Smith,  2  Caines,  19 ; 

2  Kenny  v.  Clariison,  1  Johns.  385.     Robertson  v.  United  Ins.  Co.,  2  Johns. 
8  IIigf;inson  v.  Dall,  13  Mass.  R.  9G.     Cas.  250  ;  Jennings  v.  Pennsylvania 

Williams  v.  Smith,  2  Caines,  19  ;  Ken-     Ins.  Co.,  4  Binn.  251. 
ny  V.  Clarkson,  1  Johns.  385 ;  Locke 


SECT.  I.]       DESCRIPTION    OF   TUE    SUEJECT   IN    GENERAL.  235 

law  and  practice  of  merchants,  that  respondentia  and  bottomry 
must  be  specified  in  the  policy."  ^  The  reason  given  by  Kent,  J., 
is,  that  "there  is  neitiier  average  nor  salvage,  and  a  capture  does 
not  mean  a  temporary  taking  merely,  but  one  that  occasions  a 
total  loss."  2  But  this  reason  has  become  obsolete,  as  bottomry  is 
more  frequently  now  made,  expressly  or  by  implication,  subject  to 
average,  and  entitles  the  lender  to  salvage,  and  subjects  him  to 
the  expense  of  salvage,  in  the  same  manner  as  an  insurer,  and  the 
rate  of  marine  interest,  and  of  the  premium  in  effecting  insurance 
on  his  interest,  is  regulated  accordingly. 

It  was  formerly  a  usage  in  an  East  India  voyage  for  the  master 
to  be  allowed  marine  interest  on  advances  for  the  use  of  the  ship 
during  the  voyage,  which  usage  was  construed  to  give  him  the 
character  of  a  bottomry  or  respondentia  creditor.  Lord  Mansfield 
and  Justices  Ashhurst  and  Duller  held  that  his  interest  was  covered 
under  the  description  of  "goods,  specie,  and  effects.""^  If  the  in- 
terest in  this  case  was  that  of  a  bottomry  creditor,  and  the  reim- 
bursement was  contingent  and  depended  on  the  vessel's  surviving 
the  perils  of  the  voyage,  the  decision  is  inconsistent  with  the  doc- 
trine that  bottomry  interest  must  be  specified  in  the  policy.  It 
does  not  appear  what  reason  there  is  for  the  specification  of  this 
interest  in  the  policy  any  more  than  that  of  a  mortgagee,  or  rein- 
surer. The  assured  in  either  case  must  prove  his  interest,  and 
the  loss  by  perils  for  which  he  was  liable  by  the  bottomry  bond 
in  order  to  recover  indemnity.  It  is  well  settled  that  a  mortgagee 
may  insure  generally,*  and  the  better  doctrine  seems  to  be  the 
same  in  respect  to  reinsurance.^  I  cannot  but  deem  it  the  better 
doctrine,  that 

Though  authority  and  precedent  require  the  specification  of 
the  interest  in  bottomry  and  respondentia  in  the  policy,  it  is 
not  requisite  on  principle  or  for  convenience. 

428.  The  interest  of  captors,  having  no  grant  from  the  govern- 


1  Glover  v.  Black,  3  Burr.  1394;  3  Gregory  v.  Christie,  3  Doug.  419. 

1  Bl.  39G.  4  Supra,  No.  421. 

~  Robertson  v.  United  Ins.  Co.,  2  5  Infra,  Ko.  498. 
Johns.  Cas.  250. 


236  DESCRIPTION    OF   THE   SUBJECT.  [CIIAP.  V. 

ment,  but  only  a  well-grounded  expectation  of  a  grant  of  a  part 
or  the  wJiole  of  the  captured  property,  cannot  he  protected  by 
insurance  ivithout  specifying  the  interest  in  the  policy.  Lord 
Ellenborough  says  :  "Supposing  such  a  chance  insurable,  must  it 
not  be  insured  specifically  as  such  chance  ?  Must  not  the  interest 
be  so  described  in  the  policy  ?  Can  a  man  who  has  no  right, 
legal  or  equitable,  either  in  ship  or  freight,  effect  an  insurance  on 
either,  merely  because  he  has  a  chance  that  some  collateral  benefit 
may  arise  to  him,  if  the  ship  and  cargo  should  arrive  in  safety  ? "  ^ 
But  a  general  policy  upon  ships  and  cargoes  was  held  to  be  valid 
as  applied  to  the  interest  of  the  government  in  prizes.^ 

429.  A  policy  in  the  alternative,  expressed  to  be  upon  one  or 
the  other  or  both  of  tivo  subjects,  —  as  where  the  policy  is  on 
cargo  or  freight,  both  or  either,  —  may  be  applied  to  either,  if  the 
assured  proves  to  be  interested  in  but  one  ;  but  if  he  is  interested 
in  both,  it  must  be  applied  to  both  proportionably  to  his  interest, 
if  no  other  appropriation  has  been  made  before  a  loss  has  taken 
place.^ 

430.  If  the  description  designates  the  subject  ivith  sufUcient 
certainty,  or  suggests  the  means  of  doing  it,  a  mistake  of  the 
name  of  the  ship,  or  of  other  particulars,  ivill  not  defeat  the  con- 
tract."^ 

Insurance  being  on  "five  hogsheads  of  sugar  marked  D.  on 
board  of  the  B.  from  V.  to  P.,"  the  assured  proved  his  shipment 
of  that  quantity  on  board  of  the  same  vessel  for  the  same  voyage, 
but  by  mistake  of  the  broker  in  the  reading  of  the  order  the  sugars 
were  described  as  marked  D.,  instead  of  another  mark.  The 
order  was  exhibited  to  the  agent  of  the  underwriters  at  the  time 
of  making  the  policy,  who  marked  it  with  his  initials.     Mr.  Jus- 

i  llouth  V.  Tliompson,  11  East,  433.  not  likely  to  arise  on  such  a  policy, 
2  Same  f. same,  13  East,  274.  AVhcrc  since  the  specification  of  the  interest 
a  certain  proportion  of  prizes  that  shall  is  visually  made  in  describing  the  sub- 
be  made  is  granted  to  captors  by  a  ject. 

standing  law,  there  is  apparently  no  3  Faris  v.  Newburyport  Ins.  Co.,  3 

objection  to   tlie   insurance  of  their  Mass.  11.  47G. 

.share  under  a  general  description  of  '•  Poth.  Ins.  n.  105;  and  Estrangin's 

the  ship  or  cargo.     But  a  (question  is  note,  1  Emer.  159,  c.  6,  s.  2. 


SECT.  II.]      CARGO,   GOODS,   WARES,   MERCHANDISE,   ETC.  237 

tice  Washington  ruled  that  the  subject  was  adequately  identi- 
fied.i 

Doubloons  were  held  to  be  covered  under  the  general  descrip- 
tion "cargo,"  there  being  no  evidence  that  they  were  on  board  of 
the  vessel  for  any  other  purpose  than  to  procure  goods  for  trans- 
portation on  the  voyage.2 

A  policy  being  made  on  "The  Leopard,  or  by  whatever  other 
name  the  said  ship  should  be  called,  whereof  was  master  for  that 
voyage  A.  B.,  or  whoever  else  should  be  master  ; "  it  appeared 
that  the  ship,  of  which  A.  B.  was  master,  was  The  Leonard,  and 
had  never  been  called  The  Leopard.  It  was  insisted,  on  behalf 
of  the  underwriter,  that  the  general  words  were  meant  only  to 
embrace  the  case  where  the  ship  is  called  by  the  name  in  the 
policy,  and  also  by  other  names  ;  but  Chief  Justice  Lee  was  of  a 
different  opinion,  and  held  the  testimony  of  A.  B.  that  he  was 
master  of  The  Leonard,  and  never  had  been  so  of  The  Leopard, 
to  be  sufficient  to  identify  the  vessel.^ 

Another  vessel,  bearing  the  Spanish  name  Tras  Hermanas,  was 
described  in  the  policy,  by  a  translation  of  the  name,  as  The  Three 
Sisters,  and  this  was  held  to  be  a  good  description.'* 

A  policy  being  made  on  goods  on  board  of  the  ship  "called  the 
American  ship  President,  or  by  whatever  other  name  the  same 
ship  should  be  called  ;"  the  goods  were  on  board  of  "The  Presi- 
dent;" and  it  was  urged  that  the  admitting  of  the  sufficiency  of 
this  description  would  expose  underwriters  to  fraud.  The  court 
did  not  think  the  objection  sufficient  to  defeat  the  policy.^ 

SECTION     II.        CARGO,    GOODS,    WARES,    MERCHANDISE,    PROPERTY. 

43 L  The  ordinances  of  some  countries  have  provided,  that  the 
general  description,  "goods,  wares,  and  merchandise,"  should  not 
apply  to  perishable   commodities,  unless  they  were  particularly 


1  Ruan  V.  Gardner,  1  Wasli.  C.  C.  3  Hallv.Molineux,cIted6East,385. 
R-  145.  4  Clapman  v.  Cologan,  3  Camp.  382- 

2  Wolcott  V.  Eagle  Ins.  Co.,  4  Pick.  5  Lg  Mesurier  v.  Vaughan,  6  East, 
429.  382. 


238  DESCRIPTION   OF   THE    SUBJECT.  [CHAP.  V. 

named  ;  ^  but  there  seems  to  be  no  such  distinction  in  England  or 
the  United  States. 

432.  Similar  provisions  have  been  made  in  some  ordinances 
respecting  the  precious  metah,  coined  or  uncoined  ;  ^  but  they 
undoubtedly  come  within  the  general  description,  except  in  the 
case  of  clandestine  trade  ;  ^  and  there  seems  to  be  no  reason  for 
this  exception,  since  the  fact  that  the  trade  is  prohibited  appears 
to  involve  the  question  of  concealment,  or  the  legality  of  the  con- 
tract, rather  than  that  of  the  sufficiency  of  the  description. 

Mr.  Justice  Dampier  says:  "Goods,  wares,  and  merchandise 
will  cover  dollars  if  entered  at  the  custom-house."*  And  the  de- 
scription, "  goods  and  merchandises,"  has  been  held  to  be  appli- 
cable to  specie  dollars,  the  proceeds  of  sales  of  goods  covered  by 
the  policy.^ 

Emerigon  considers  the  description,  "  ingots  of  gold,"  to  be 
applicable  to  coins,  and  utensils  of  that  metal.*^  But  this  appears 
to  be  a  forced  construction,  as  before  suggested. 

Mr.  Justice  Dampier  says,  the  description,  "  goods,  wares,  and 
merchandise,"  will  not  cover  '^  bills  of  exchange." ' 

433.  Mr.  Justice  Spencer  considers  a  curricle  as  coming  within 
the  description  of  goods,  wares,  and  merchandise.  He  said  : 
''-  Here  has  been  no  concealment :  the  assured  was  not  bound  to 
specify  the  nature  of  the  cargo."  ^ 

434.  Articles  of  clothing  for  use  by  persons  on  board,  and  not 
for  trade,  are  not  covered  as  goods,  wares,  and  merchandise.^ 

435.  Nor  are  rings,  jewels,  &;c.,  which  are  not  intended  for 
trade,  but  belonging  to  the  persons  of  those  on  board  of  a  vessel, 
covered  under  such  general  description.^^ 

1  1  Masons,  9,  s.  14  ;  Wcskett,  tit.  Wend,  R.  399 ;  and  see  Coggesliall  v. 
Goods.  American  Ins.  Co.,  3  Wend.  283. 

2  1  Magens,  9,  n.  G  Vol.  I.  c.  10,  s.  3. 

3  1  Magens,  10,  s.  15 ;  Wcskitt,  tit.  '  Thomas  v.  Royal  Exch.  Ass.  Co., 
Goods  ;  1  Emer.  297,  c.  10,  s.  2;  Tark,  1  rrice,  95. 

26;  ^larsh.  319.  8  Duplanty  v.  Commercial  Ins.  Co., 

4  Tliomas  r.  Royal  E.xch.  Ass.  Co.,  Ambon's  Cas.  at  N.  P.  114. 
1  Prifc,  95.  0  Marsh.  Ins.  727. 

5  American  Ins.  Co.  v.  Griswold,  14  ^^  Roc.  n.  17. 


SECT.  II.]      CARGO,   GOODS,   WARES,   MERCHANDISE,   ETC.  239 

436.  Lord  Ellenborough  says :  "  Outfit  cannot  be  considered 
as  'goods,'  in  any  proper  sense  of  that  word,  that  is,  as  part  of 
the  cargo."  ^ 

437.  Where  the  policy  is  on  cargo,  goods,  property,  &;c.,  "  by 
ship  or  ships,"  for  a  specified  voyage,  from  a  certain  port,  or  cer- 
tain ports,  or  in  general  for  a  certain  period,  as  it  is  applicable  to 
goods  in  any  ship,  the  subject  must  he  identified  by  the  ports  oj 
shipment,  the  voyage,  or  the  time  ofi  shipment,  or  by  any  or  all  of 
these  modes  of  distinction  .^ 

438.  Policies  are  sometimes  made  on  goods  "  by  a  ship  or 
ships,"  as  thereafter  to  be  declared,  or  on  goods  thereafter  to  be 
declared,  which  leaves  it  to  the  assured  afterwards  to  determine 
the  subject.  But  the  voyage  is  described,  and  generally  the  time 
mentioned  within  which  the  ships  are  to  sail.  Large  amounts 
were  formerly  kept  insured  in  this  way.^ 

There  is  some  hazard  of  fraud  in  these  policies,  as  the  assured 
may  have  a  certain  sum  insured  between  particular  ports  for  a 
certain  time,  and  within  that  time  ship  ten  times  the  amount,  and 
declare  the  policy  to  be  on  the  shipment  on  which  a  loss  may 
happen,  when  it  may  not  be  easily  proved  what  other  shipments 
have  been  made.  On  the  other  hand,  this  description  may  ope- 
rate unfavorably  to  the  assured,  as  he  may  not  be  able  easily  to 
prove  that  he  had  no  goods  at  risk,  in  case  he  demands  a  return 
of  premium.  In  this  instance,  as  in  many  others,  each  party  con- 
fides very  much  in  the  good  faith  of  the  other. 

The  legality  of  this  mode  of  description  is  well  established.* 

The  assured  may  declare  the  subject  to  ivhich  the  policy  is  to 
be  applied  after  a  loss  has  taken  place.^ 

If  he  were  required  to  declare  before  the  loss,  or  lose  the  bene- 
fit of  the  policy,  the  contract  would  frequently  be  ineffectual,  since 

>  Hill  V.  Patten,  8  East,  373.    It  3  Weskett,  tit.  Ship  or  Ships,  n.  10. 

belongs  mostly  to  the  ship.    See  infra,  4  Kewley  v.  Ryan,  2  H.  Bl.  343. 

s.  4.  5  Harman  v.  Kingston,  3  Camp.  150. 

2  Robinson  v.  Touray,  3  Camp.  158  ;  See  also  Craufurd  v.  Hunter,  8  T.  R. 

1  M.  &  S.  217 ;  Crowley  v.  Cohen,  3  13  n.  a. 
B.  &  Ad.  478  ;  Atkins  v.  Boylston  Ins. 
Co.,  5  Mete.  439. 


240  DESCRIPTION   OF   THE   SUBJECT.  [CHAP.  V. 

it  is  adopted  when  no  more  particular  description  can  be  made, 
and  it  often  happens  that  intelligence  of  a  loss  is  received  as  early 
as  the  information  by  which  the  assured  would  be  able  to  make  a 
declaration  of  his  interest.  From  the  necessity  of  the  case,  there- 
fore, he  must  be  permitted  to  declare  his  interest  after  he  receives 
news  of  a  loss. 

It  would,  however,  be  a  security  to  the  underwriters  in  such  a 
case,  to  insert  a  condition,  that  the  assured  should  declare  his  inte- 
rest immediately  after  receiving  intelligence  which  would  enable 
him  to  do  it.^ 

It  is  held  by  Lord  Mansfield  and  his  associates,  that,  where 
different  shipments  come  within  the  description  in  the  policy,  the 
assured  may  apply  it  to  either.  Messrs.  K.  and  R.,  of  L.,  had 
insured  £1,260  on  board  of  The  Elizabeth,  from  G.  to  L.,  on  ac- 
count of  F.  They  had  orders  to  insure  £1,300  more,  and  not 
knowing  by  what  ship  the  goods  were  to  be  sent,  they  insured 
£600  in  London,  and  £700  in  Liverpool,  "from  G.  to  L.,  on 
any  kind  of  goods  as  interest  should  appear,  in  ship  or  ships  to 
sail  before  the  first  of  August,  1793."  There  was  nothing  in  the 
policy  to  except  the  goods  by  The  Elizabeth  ;  and  the  underwriters 
at  Liverpool  did  not  know  that  the  insurance  was  not  intended  to 
cover  those  goods.  The  Elizabeth  sailed  in  June  and  arrived 
safe.  The  H.  sailed  afterwards,  within  the  time  mentioned  in 
the  policy,  with  goods  of  the  assured  on  board  to  the  amount  of 
£1,300,  and  was  lost.  The  underwriters  in  Liverpool  refused 
to  pay  the  loss,  alleging  that  goods  to  the  amount  insured,  and 
within  the  description  in  the  policy,  had  arrived  in  The  Elizabeth, 
and,  if  damage  had  happened  to  them,  the  assured  could  have 
claimed  a  loss.  But  the  court  said  ;  "The  assured  had  clearly  a 
right  to  apply  such  an  insurance  to  whatever  ship  he  thought  pro- 
per within  the  terms  of  it."  ^ 

In  this  case  the  assured  had,  by  the  previous  insurance  of  the 
shipment  on  The  Elizabeth,  so  far  manifested  his  election  as  to 
the  application  of  the  subsequent  policies  to  other  shipments, 
otherwise  than  merely  by  his  declaration  on  the  subsequent  policies. 

I  Sec  Wcskctt,  p.  520,  lit.  Siiip  or  Ships.      2  Kcwlcy  v.  Ryan,  2  II.  B1.343. 


SECT.  II.]      CARGO,    GOODS,   "WARES,   MERCHANDISE,    ETC.  241 

In  a  similar  case  before  the  same  court,  of  two  shipments  from 
Bengal,  and  two  policies  effected  in  London,  the  assured  had  pre- 
viously to  the  loss  declared  on  oath  before  a  magistrate  in  Bengal, 
whereby  his  declaration  had  publicity,  to  which  of  the  shipments 
he  intended  that  one  of  the  policies  should  apply.  This  declara- 
tion repeated  to  the  underwriters  was  held  to  fix  the  application 
of  the  policy  to  the  shipment  on  which  a  loss  occurred.^ 

439.  Though  it  is  not  necessary  to  the  validity  of  a  policy 
on  goods  or  other  subjects  "thereafter  to  be  declared,"  that  the 
declaration  should  be  made  previously  to  the  loss,  still,  if  divers 
shipments  or  subjects  belonging  to  the  assured  answering  to  the 
description,  have  been  put  at  risk,  and  no  declaration  or  act  of 
the  assured,  by  effecting  other  insurance  or  otherwise,  has  deter- 
mined the  application  of  a  policy  to  particular  subjects  prior  to 
intelligence  of  a  loss,  the  policy  must  be  applied  to  all  the  sub- 
jects comprehended  in  the  description.^ 

It  has  been  held  in  Massachusetts  on  an  equivalent  description, 
namely,  on  "the  cargo  or  freight  of  the  ship  America,  both  or 
either,"  that,  after  the  event  was  known,  the  policy  must  be  ap- 
plied to  both  in  the  proportion  of  the  interest  of  the  assured  in  the 
two  subjects."' 

In  case  of  an  open  policy  by  a  St.  Louis  company,  on  ship- 
ments by  sailing  vessels  or  steamboats  for  six  months  on  the  west- 
ern waters  or  from  the  Atlantic  ports  by  way  of  New  Orleans, 
"indorsements  to  be  evidence  of  property  at  the  risk  of  the  com- 
pany," where  the  assured  received  advice  of  a  shipment  and  loss 
at  the  same  time,  Messrs.  Tompkins,  Napton,  and  Scott  decided 
that  the  shipment  could  not  be  indorsed."^  A  decision  of  Lord 
Kenyon  and  his  associates^  is  referred  to  as  authority»for  holding 


1  Henchman  v.  Offley,  3  Dong.  135.  5  Worseley  v.  Wood,  6  T.  R.  710, 
See  also  8  T.  R.  13,  n. ;  2  H.  Bl.  343.  that  under  a  provision  of  a  fire  policy 

2  See  1  Emer.  174,  c.  6,  s.  5 ;  Crow-  requiring  a  certain  certificate  as  pre- 
ley„r.  Cohen,  3  B.  &  Ad.  478.  liminary  proof  of  loss  by  fire,  (see  in- 

3  Faris  v.  Newburyport  Ins.  Co.,  3  fra  No.  885,)  its  non-production  could 
Mass.  R.  476.  not  be   excused   though  it  was   not 

4  Edwards  v.  St.  Louis  Perpetual  owing  to  any  fault  of  the  assured,  re- 
ins. Co.,  7  aiissouri  R.  (by  Bay,)  382.  versing  the  judgment  of  Eyre,  C.  J., 

VOL.    I.  21 


242  DESCKIPTION    OP   THE    SUBJECT.  [CHAP.  V. 

that  the  indorsement  of  the  shipment  before  advice  of  the  loss,  was 
indispensable.  A  more  satisfactory  ground  seems,  however,  to  be 
that  the  underwriters  were  not  liable  for  the  risk  until  the  assured 
was  liable  for  the  premium,  and  he  was  not  so  until  the  indorse- 
ment of  the  shipment  was  made ;  in  which  respect  the  case  is  dis- 
tinguishable from  those  above  cited  of  the  subject  being  declared 
after  the  loss,  where  the  description  was  applicable  to  all  the  ship- 
ments made  on  account  of  the  assured  on  the  voyages  specified 
within  the  time  specified. 

440.  The  assured  may  revoJce  a  declaration  made  by  mistaJce, 
and  declare  anew.^ 

It  must,  however,  in  such  case  doubtless  appear  that  he  had  no 
goods  as  first  declared. 

441.  A  policy  on  goods  and  ''proceeds,^'  or  "returns,"  applies 
to  return  goods  shipped  on  the  credit  of  the  outivard  cargo,  left 
at  a  foreign  port  to  he  sold.^ 

442.  A.  policy  upon  certain  goods  for  an  outward  passage  and 
the  proceeds  thereof  home,  is  not  applicable  to  the  same  goods 
brought  back,  at  least  unless  a  usage  to  that  effect  is  proved. 

It  was  so  held  respecting  a  shipment  consisting  mostly  of  artificial 
flowers,  silk  goods,  and  muslins,  from  New  York  to  India.  It  does 
not  appear  from  the  case  why  the  same  goods  were  returned.  In 
the  Superior  Court,^  one  reason  at  first  given  for  the  decision  why 
the  risk  did  not  continue  homeward  was,  that  the  goods  had  not 
been  examined  at  the  foreign  port,  and  they  might  not  have  been 
in  a  proper  condition  for  the  homeward  passage.  But  in  the  sub- 
sequent reports  it  is  stated  that  they  were  in  a  sound  state.  In 
the  Supreme  Court  and  the  Court  of  Errors,  such  application  of 
the  term  '<  proceeds"  was  rejected,  as  being  too  obviously  incon- 
sistent with  the  policy.  In  the  latter  court,  however,  the  case 
was  remanded  to  give  the  assured  an  opportunity  to  prove  that, 

and  his  associates  in  "Wood  v.  Worse-  AVliitney  v.  Am.  Ins.  Co.,  3  ([loweu, 

ley,  2  II.  Bl.  574.  210 ;  S.  C,  Am.  Ins.  Co.  v.  Whitrtey, 

1  Roltinson  v.  Touray,  3  Camp.  158 ;  5  id.  712. 

S.  C,  1  M.  &  S.  217.  3  Dow  V.  Hope  Ins.  Co.,  1  Hall's  11. 

^  Haven  r.  Gray,  12  Mass.  11.  71  ;  170. 


SECT.  II.]      CARGO,   GOODS,   WARES,   MERCHANDISE,   ETC.  243 

by  usage,  the  word  ''proceeds"  was  applicable  to  the  same  goods 
homeward. 1 

443.  Insurance  on  goods  on  hoard  of  a  vessel  for  a  certain 
period,  or  a  certain  voyage,  admits  of  a  change  of  the  goods, 
and  applies  to  other  goods  the  proceeds  of  those  shipped,  ivhere 
the  policy,  by  the  description  of  the  risk,  the  character  and  length 
of  the  voyage,  or  the  length  of  the  period,  indicates  that  they  are 
to  he  changed.^ 

Thus  a  policy  dated  in  July,  on  goods  on  board  of  a  vessel  then 
on  a  trading  voyage  on  the  coast  of  Africa,  "beginning  the  adven- 
ture from  loading,  and  shall  continue  until  the  said  goods  shall  be 
landed  on  the  10th  of  January,"  was  held  to  apply  to  goods  being 
the  proceeds  of  those  on  board  at  the  commencement  of  the  risk.^ 

444.  A  policy  upon  the  lading  of  a  certain  vessel  employed  in 
a  certain  navigation  for  a  specified  period,  will  he  applied  to  all 
the  lading  of  all  the  vessels  within  such  period. 

In  a  case  before  the  K.  B.  in  England,  the  sum  of  £12,000  was 
insured  for  twelve  calendar  months,  on  goods  on  thirty  boats  at 
work  between  London,  Wolverhampton,  Birmingham,  &c.,  back- 
wards and  forwards,  and  in  rotation,  beginning  the  adventure  on 
the  goods  from  the  lading  thereof  on  board,  and  continuing  it  until 
the  same  should  be  discharged,  the  claim  on  the  policy  warranted 
not  to  exceed  100  per  cent.;  £3,000  only  to  be  covered  in  any 
one  boat,  on  any  one  trip  ;  the  question  was,  whether  the  policy 
applied  only  to  the  first  amount  of  £12,000  carried,  or  was  a  con- 
tinuing insurance  of  that  amount  on  the  goods  successively  carried 
in  the  boats,  during  the  year.  The  latter  was  held  to  be  the  true 
construction.'* 

445.  The  description  of  goods  shipped  '^hetween''  two  dates, 
excludes  the  days  named.^ 

446.  An  insurance  on  "all  lawful  goods  ^'  has  heen  held  to 
apply  to  conirahand  goods  as  well  as  other. 

1  Dowf.  Whetten,  8  Wend.  160.  *  Crowley  v.  Cohen,  3  B.  &  Ad. 

2  See  Valin,  Vol.  II.  p.  78,  tit.  In-    478. 

surancc,  a.  27.  5  Atkins   v.   Boylston   Ins.    Co.,  5 

3  Coggeshall   v.   Am.    Ins.   Co.,   3     Mete.  430. 
Wend.  283. 


244  DESCRIPTION   OF   THE   SUBJECT.  [CHAP.  V. 

Mr.  Justice  Kent  said  :  "  I  am  of  opinion  that  contraband  goods 
are  lawful  goods  ;  and  that  whatever  is  not  prohibited  to  be  ex- 
ported by  the  positive  law  of  the  country  is  lawful.  The  law  of 
nations  does  not  declare  the  contraband  trade  to  be  unlawful.  It 
only  authorizes  the  seizure  of  the  contraband  articles  by  the  belli- 
gerent powers."  ^ 

447.  Insurance  is  sometimes  made  07i  goods  ''from  the  time  of 
loading  them  on  board,"  specifying  at  the  same  time  at  what  port 
the  risk  is  to  commence. 

If  the  goods  are  not  laden  on  board  at  the  port  \'^here,  accord- 
ing to  the  policy,  the  risk  is  to  commence,  there  may  arise  a  ques- 
tion whether  the  policy  attaches. 

It  has  been  decided  in  a  number  of  cases,  that  the  policy  did 
not  attach,  and  in  those  decisions  three  different  grounds  are  as- 
sumed ;  one,  that  it  is  a  condition,  in  the  nature  of  a  warranty, 
that  the  goods  should  be  loaded  on  board  at  the  place  named  ; 
another,  that  the  loading  of  the  goods  on  board  at  such  place  is 
the  only  event  from  which  to  date  the  commencement  of  the  risk, 
and  this  not  having  happened,  it  does  not  commence ;  and  a  third, 
that  the  goods  do  not  ansv/er  to  the  description  in  the  policy. 
The  grounds  of  warrantry  and  the  want  of  commencement  of  the 
risk,  have  been  the  most  distinctly  alleged  in  support  of  these  de- 
cisions. 

It  was  held  in  New  York,  under  a  policy  "  upon  all  goods 
laden  on  board  the  R.,  beginning  the  adventure  from  the  loading 
thereof  at  Cagliari,"  that  "the  hoisting  the  cargo  out  of  the  hold 
and  restoring  it  at  Cagliari  did  not  amount  to  loading  it  on  board 
at  that  place."  ^ 

A.  ship  and  cargo  were  insured  "at  and  from  the  coast  of  Africa 
to  hor  port  of  discharge  in  the  United  Kingdom,  beginning  the  ad- 
venture upon  the  goods  from  the  loading  thereof  aboard  the  said 
ship  twenty-four  hours  after  her  arrival  on  the  said  coast  ;  "   the 


'  Scion   r.  Low,  1  Johns.  Cas.  1.  2  ]\iurray  i'.  Columbian  Ins.  Co.,  1 1 

Sec  also    Skidinorc    v.   Dcsdoity,    2  Johns.  302.    But  see  the  cases  on  this 

Johns.  Cas.   77;   Jiihel  v.  llhinclan-  subject  under  AYarranty  and  Risks. 
der,  2  Johns.  Cas.  120  and  187. 


SECT.  II.]       CARGO,    GOODS,   WARES,   MERCHANDISE,   ETC.  245 

cargo  being  valued.  The  policy  was  held  not  to  attach  to  any  of 
the  outward  cargo  remaining  on  board  after  the  expiration  of  the 
twenty-four  hours.* 

A  policy  was  underwritten  for  a  voyage  "at  and  from  Singa- 
pore, Penang,  Malacca,  and  Batavia,  to  a  port  of  discharge  in 
Europe,  with  leave  to  touch,  stay,  and  trade  at  all  or  any  ports  or 
places  whatsoever  and  wheresoever  in  the  East  Indies,  Persia,  or 
elsewhere,  beginning  the  adventure  on  the  said  goods  from  the 
loading  thereofion  board  the  ship  as  above  ;  with  liberty  to  sail  to, 
and  touch,  and  stay  at,  any  ports  or  places  whatsoever  and  where- 
soever, in  any  direction  and  for  any  purpose,  necessary  or  other- 
wise, particularly  at  Singapore,  Penang,  Malacca,  Batavia,  &ic." 
The  ship  sailed  from  Batavia  to  Sourabaya,  about  four  hundred 
miles  to  the  eastward  of  Batavia,  and  not  in  the  direction  of  any 
of  the  other  ports  named,  or  in  the  course  to  Europe,  and  there 
procured  a  part  of  a  cargo,  and  then  returned  to  Batavia  to  take 
in  the  rest  of  her  cargo.  It  was  held  that  the  policy  attached  to 
the  cargo  taken  on  board  at  Sourabaya.^ 

Insurance  was  made  at  and  from  A.  to  St.  T.,  and  two  other 
ports  in  the  West  Indies,  and  back  to  her  port  of  discharge  in  the 
United  States,  upon  "all  kinds  of  lawful  goods,  laden  or  to  be 
laden  on  board  the  ship  C,  beginning  the  adventure  from  the 
loading  at  A.,  and  continuing  the  same  until  the  goods  shall  be 
safely  landed  at  St.  T.  &c.  and  the  United  States  ;  the  goods  to 
be  valued  as  interest  may  appear."  Mr.  Justice  Story,  giving  the 
opinion  of  the  court  on  this  description,  said:  "It  is  plainly  an 
insurance  upon  all  lawful  goods,  not  only  upon  the  outward  voy- 
age to  the  West  Indies,  but  for  the  homeward  voyage.  The  clause 
may  be  rationally  expounded,  as  intended  only  to  point  out  the 
time  of  the  commencement  and  termination  of  the  risk  on  the 
goods,  successively  constituting  the  cargo."  ^ 

An  insurance  being  "at  and  from  Havre  and  any  port  or  ports 


1  Hickman  v.  Carstairs,  5  B.  &  Ad.  See  also  Grant  v.  Paxton,  1  Taunt. 
C51 ;  S.  C,  2  N.  &  M.  502.  463. 

2  Hunter  v.  Leathly,  10  B.  &  C.  3  Columbian  Ins.  Co.  v.  Catlett,  12 
858,  affirmed  on  error,  7  Bing.  517.  Wheat.  383. 

21* 


246  DESCRIPTION    OF   THE    SUBJECT.  [CHAP.  V. 

of  France  south  of  that  place,  to  New  Orleans,"  on  goods  "  to  be 
shipped  during  six  months  from  the  1st  of  August,  the  ship  left 
her  moorings  at  Bourdeaux  on  the  6th  of  August,  and  put  to  sea 
on  the  12th  from  Paulier,  about  eleven  leagues  below  Bourdeaux, 
and  was  wrecked  off  the  American  coast  and  her  cargo  totally 
lost.  Part  of  the  cargo  had  been  put  on  board  at  Bourdeaux  be- 
fore the  1st  of  August,  which  the  underwriters  contended  was  not 
covered  by  the  policy.  But  the  Supreme  Court  of  Louisiana  held 
that  the  provision  related  to  the  time  of  the  vessel's  sailing  from 
the  ports  specified,  not  to  the  time  of  the  goods  being  put  on  board, 
and  accordingly  that  the  policy  covered  goods  laden  on  board  be- 
fore the  first  of  August.i  That  is,  the  term  "shipped"  was  appli- 
cable to  the  vessel  sailing  with  the  goods  on  board. 

448.  Insurance  on  goods  laden  on  board  of  a  vessel  foi'  a  cer- 
tain voyage  applies  to  the  pending  or  Jirst  passage  or  trip. 

So  held  under  a  policy  upon  a  certain  number  of  hogsheads  of 
sugar,  to  be  laden  on  board  of  a  steamboat  on  a  trip  from  New 
Orleans  to  Louisville.^ 

449.  On  specified  goods  "from  a  certain  port,"  covers  goods 
put  on  board  at  an  outport  in  the  vicinity  of  that  named,  where  it 
is  usual  so  to  take  on  board  articles  of  like  description. 

So  held  in  respect  of  a  shipment  insured  from  New  Orleans, 
and  put  on  board  on  the  opposite  side  of  the  river.^ 

450.  The  vessel  on  board  of  which  goods  are  insured,  must 
ansiver  to  the  description  in  the  policy.  If  there  is  a  vessel  in 
the  specified  trade  exactly  answering  to  the  description,  the  as- 
sured is  precluded  from  applying  the  policy  to  another  one  in  the 
same  trade  answering  to  it  only  in  some  respects  where  the  under- 
writers can  be  supposed  to  have  understood  the  former  to  have 
been  intended. 

Insurance  was  made  on  goods  "on  board  the  brig  Abeona." 
There  were  two  vessels  of  that  name  in  the  trade  specified  in  the 


'  Sorbc  I'.  Merchants'  Ins.  Co.,  0        3  M'Cargo  v.  Merchants'  Ins.  Co., 
La.  11.  185.  10  Rob,  La.  11.  334. 

2  Coiirtnay  r.  Mi.ss.  Fire  &  Mar.  Ins. 
Co.,  12  La.  K.  233. 


SECT.  II.]       CARGO,    GOODS,    WARES,   MERCHANDISE,   ETC.  247 

policy  ;  one  a  brig,  the  other  an  liermaplirodite  brig,  schooner,  lop- 
sail  schooner,  half-brig  or  brigantine.  The  policy  was  held,  in 
New  York,  to  apply  only  to  the  fornaer.^ 

451.  The  subject  may  he  itlentificd  hy  the  fact  of  its  being 
^'  consisaneiV^  to  the  assured. 

Commission  merchants  of  New  Orleans  for  receiving  consign- 
ments of  cotton  coming  down  the  Mississippi,  keep  on  foot  a  gene- 
ral insurance  "  for  whom  it  may  concern,  on  cotton  consigned  to 
them,"  against  loss  by  perils  of  the  river  ;  giving  notice  from  time 
to  time  of  the  consignments. 

A  quantity  of  cotton  belonging  to  B  was  consigned  to  a  com- 
mission merchant  having  such  a  general  insurance,  on  the  supposi- 
tion of  his  being  the  agent  of  B,  and  the  consignor,  on  learninfj 
that  he  had  been  under  a  mistake,  ordered  the  consignee  to  deliver 
the  cotton  over  to  the  agent  of  B.  The  consignee  received  this 
order,  and  the  bill  of  lading,  and  intelligence  of  the  loss  of  the  cot- 
ton, at  the  same  lime.  The  Supreme  Court  of  Louisiana  decided 
that  the  general  policy  of  the  consignee  attached  to  the  shipment, 
and  that  the  underwriters  were  liable  to  the  owner  of  the  cotton 
for  the  loss.2 

452.  The  description  of  the  subject  as  being  "cargo"  is  very 
similar  in  construction  to  the  description  "  goods." 

Provender  taken  on  board  for  mules  was  held  not  to  be  covered 
under  the  description  of  "cargo." ^ 

453.  A  policy  on  "cargo"  has  been  held  in  Massachusetts  not 
to  apply  to  mules  and  horses,  whether  on  deck  or  under  deck,  the 
underwriters  having  no  notice  that  such  was  the  cargo.  They  are, 
says  Mr.  Justice  Putnam,  giving  the  opinion  of  the  court,  "sub- 
jects of  particular  insurance,  and  not  covered  under  the  general 
word  cargo,  or  goods."  *  A  similar  decision  has  been  given  in 
Maryland.^ 

1  Sea  Ins.  Co.  v.  Fowler,  21  Wend.        ^  Ibid. 

600.  5  Allegre's  Administrators  v.  Mary- 

2  Ballard  v.  Merchants'  Ins.  Co.,  9  land  Ins.  Co.,  2  Gill  &  Johnson  136. 
La.  R.  258.  See  also  Weskett,  tit.  Goods. 

3  Wolcott  t'.  Eagle  Ins.  Co.,  4  Pick. 
429. 


248  DESCRIPTION    OF   THE   SUBJECT.  [CHAP.  V. 

454.  A  policy  being  made  at  Boston  on  the  cargo  of  a  ship 
"now  on  a  ivhaling  voyage^'  in  the  Pacific  Ocean,  lost  or  not 
lost,  to  continue  during  her  stay,  and  until  her  return  to  Nantucket, 
it  was  held  to  attach  to  the  proceeds  of  the  voyage  ;  that  is,  the 
oil  taken} 

455.  The  term  ^' property  ^^  is  more  comprehensive  than  the 
other  general  terms  usually  adopted  in  the  description  of  the  sub- 
jects of  marine  transportation. 

Insurance  effected  by  the  master  for  himself  on  ^'  property  ^^  on 
board  of  a  coasting  vessel  for  a  certain  period,  during  which,  ac- 
cording to  the  ordinary  course  of  such  trade,  it  must  be  changed 
from  time  to  time,  by  sales  and  purchases,  and  incidentally,  and 
to  a  greater  or  less  extent,  and  for  longer  or  shorter  periods,  as- 
sume the  form  of  the  usual  circulating  medium,  will  cover  moneys 
deposited  in  a  suitable  place  on  board. 

It  was  so  held  relative  to  bank-notes  on  board  of  a  vessel  in- 
sured in  the  trade  between  Hingham,  Mass.,  and  Hallowell,  in 
Maine,  the  loss  being  by  fire,  while  the  vessel  was  at  sea.^ 

456.  Lumber  and  other  articles  were  shipped  for  Porto  Rico, 
on  an  agreement  that  the  shipowners  should  be  entitled  to  three 
fifths  of  the  lumber,  instead  of  freight,  the  freight  of  the  other  arti- 
cles being  agreed  for  as  usual.  A  policy  was  effected  on  ^^  pro- 
perty on  hoard,''^  intended  to  cover  the  amount  to  be  received  as 
freight.  Parker,  C.  J. :  "  We  think,  that,  on  landing  the  lumber, 
the  assured  became  entitled  to  a  portion  of  it,  under  the  contract ; 
they  had  an  interest  in  the  cargo  itself.  They  had  property  in 
three  fifths,  as  much  as  the  owners  of  the  cargo  had  in  the  residue. 
The  policy  was  to  protect  them  from  the  contingency  which  would 
defeat  it."  The  policy  was  considered,  accordingly,  to  be  appli- 
cable to  the  interest  in  the  lumber,  but  not  to  the  other  freight.^ 

457.  Under  a  policy  on  "furs,"  the  invoice  was  headed,  "in- 
voice of  furs  ;  "  but  in  the  body  of  the  invoice  they  were  described 


1  Paildock  V.  Franklin  Ins.  Co.,  11  3  Wiggin  v.  Merchants'  Ins.  Co.,  7 

rick.  227.  Pick,  271.      See   also,   to   the   same 

i^  Whiton  r.  Old  Colony  Ins.  Co.,  2  cflcct,  Ilolbrook  v.  Brown,  2  Mass. 

Mctc.  1.  K.  280. 


SECT.  II.]      CARGO,    GOODS,   WARES,   MERCHANDISE,   ETC.  249 

as  bear  and  raccoon  skins,  opossum,  deer,  fine  fisher,  cross-fox, 
martin,  white  raccoon,  wild-cat,  wolf,  wolverine,  panther,  and  cub 
skins,  to  the  amount  of  ,'^'24,000  in  the  whole.  It  was  given  in 
evidence,  that  skins  valuable  chiefly  on  account  of  the  fur  are,  in 
the  language  of  trade,  cnWed  furs,  and  that  skins  is  a  term  mostly 
appropriated  to  those  which  are  valuable  chiefly  for  the  skin  ;  but 
there  was  some  discrepancy  in  the  testimony,  as  to  the  extent  of 
the  application  of  the  terms  ;  and,  the  testimony  being  submitted 
to  the  jury,  they  found  a  verdict  for  the  whole  sum  insured  ;  and 
the  court  refused  a  new  trial.  The  case,  however,  turned  mostly 
on  the  question  whether  the  cargo  came  under  the  memorandum.^ 

458.  The  description  on  "oil,  bone,  and  other  takings,"  on  a 
''whaling  voyage"  in  the  Pacific,  covers  sea-elephant  oil,  it  being 
a  frequent  practice  to  take  sea-elephants  on  such  voyages.^ 

459.  The  description,  ''  bills  of  exchange/^  has  been  much  dis- 
cussed in  the  English  Court  of  Common  Pleas. 

The  master  of  an  India  ship  drew  bills  of  exchange  on  a  Cal- 
cutta merchant,  payable  in  a  certain  number  of  days  after  the  arri- 
val of  his  vessel,  in  favor  of  a  party  who  had  advanced  money  for 
the  purchase  of  goods,  the  proceeds  of  which  were  intended  to  be 
applied  by  the  consignee  and  drawee  of  the  bills  in  Calcutta  to 
the  payment  of  the  bills.  This  species  of  loan  had  been  in  use 
some  eleven  or  twelve  years  in  London,  instead  of  loans  on  respon- 
dentia, it  being  understood  that  the  payment  of  the  bills  was  to 
depend  on  the  arrival  of  the  ship.  The  lender  made  insurance  of 
his  interest  under  the  description  "  bills  of  exchange,"  specifying 
them.  Best,  C.  J.,  and  his  associates,  decided  against  the  assured's 
claim  for  the  loss  of  the  ship  and  goods  with  one  set  of  the  bills 
on  board,  on  the  ground  that  such  a  contract  for  the  payment  of 
money  on  a  contingency  was  not  a  bill  of  exchange,  and  accord- 
ingly, if  the  plaintiff  had  any  insurable  interest,  it  was  not  properly 
described.^  This  construction  was  certainly  very  strict  upon  the 
assured. 


'  Astor  V.  United  Ins.  Co.,  7  Cowen,  202. 

2  CLild  v.  Sun  Mutual  Ins.  Co.,  3  Sandf.  26. 

3  Palmer  v.  Pratt,  2  Bing.  185. 


250  DESCRIPTION    OF    THE    SUBJECT.  [CUAP.  V. 

460.  The  claims  and  liabilities  of  the'parties  to  a  policy  relative 
to  goods  carried  on  deck  come  under  consideration  in  respect  to 
the  description  of  the  subject,  the  enhancement  of  the  risk,  and 
contribution  for  jettison  ;  and  these  different  phases  of  the  subject, 
though  the  questions  are  not  identical,  are  still  very  much  con- 
nected with  each  other.  -The  inquiry  is  not  free  from  difficulty  in 
either  respect,  and  the  jurisprudence  on  the  subject  is  involved  in 
obscurity  and  discrepancies. 

A  general  description  does  not,  except  under  special  circum- 
stances, cover  articles  carried  upon  deck.  The  articles  so  stowed 
are  therehy  put  out  of  the  protection  of  the  policy,  unless  their 
being  carried  in  this  ivay  is  provided  for  in  the  policy,  or  indi- 
cated by  the  description  of  the  article  itself  in  the  policy,  or  jus- 
tified by  the  usage  of  the  specified  trade. 

Where  the  article  specified  in  the  policy  is  uniformly  so  car- 
ried, or  obviously  7nust  from  its  character  be  so,  for  its  own 
safet}-,  or  that  of  the  ship,  cargo,  and  crew,  the  policy  will  attach 
to  it,  so  carried,  by  the  merely  naming  of  it  and  describing  the 
voyage.' 

The  insurance  on  '' outfits  and  catchings,^^  on  a  whaling  voy- 
age, covers  '^blubber,^^  or  .whale's  flesh  cut  from  the  whale,  and 
remaining  on  deck  to  be  "  tried,"  according  to  the  usage  in  that 
species  of  fishery.^  There  is  a  uniform  usage  to  carry  on  deck, 
and  also  an  indication,  by  the  description  of  the  subject  and  the 
voyage,  that  the  part  of  the  subject  in  the  form  of  "blubber"  is  to 
be  on  deck. 

So,  in  the  illustration  given  by  Mr.  Justice  Putnam,^  of  an  insur- 
ance specifically  upon  an  elephant,  the  character  of  the  specified 
subject  is  a  sufficient  indication  of  the  manner  in  which  it  is  to  be 
transported. 

Upon  the  same  principle.  In  a  case  before  Lord  Denman  and 
his  associates,  on  a  policy  specified  to  be  on  "  pigs,"  on  a  passage 
from  VVaterford  to  London,  alleged  to  be  carried  on  deck,  in  con- 


J  Taunton  Copper  Co.  v.  Merchants'        2  Rogers  v.  Mechanics'  Ins.  Co.,  1 
Ins.  Co.,  22  Pick.  lOH ;  Sniilli  v.  Miss.     Story's  II.  603. 
Fire  &  Mar.  Ins.  Co.,  11  La.  It.  112.  3  22  Pick.  103. 


SECT.  II.]      CARGO,    GOODS,   WARES,  MERCHANDISE,   ETC.  251 

formity  with  a  usage  so  to  carry  them,  the  policy  was  held  to 
attach.^ 

Thus  Air  the  proper  rule  is  obvious,  and  the  cases  agree.  Be- 
yond this,  we  come  to  a  difficult  question,  on  which  the  jurispru- 
dence is  wavering  and  inconsistent ;  namely, 

Whether  the  policy  attaches  to  an  article  on  deck  that  is  merely 
named,  without  any  express  intimation  in  the  policy  that  it  is  to 
be  so  carried,  where  articles  of  the  same  land  are  not  necessarily 
or  uniformly  so  stowed,  but  sometimes  go  on  deck,  and  sometimes 
under,  according  to  the  quantity  and  kind  of  cargo  ? 

It  has  been  held  in  Massachusetts  and  Louisiana,  that  such  an 
article  will  not  be  so  covered,  unless  a  usage  for  underwriters  to 
pay  for  it  when  so  carried  is  proved,  as  well  as  a  usage  so  to  carry 
it.^  This  is,  however,  quite  a  questionable  form  of  presenting  the 
rule. 

In  a  case  before  the  Queen's  Bench  in  England,-^  it  was  de- 
cided, on  demurrer  to  a  replication  of  a  usage  to  carry  pigs  on 
deck,  that  the  policy  upon  them  attached,  and  that  the  underwrit- 
ers were  liable  to  reimburse  to  the  ship-owner  a  contribution  in 
general  average,  on  account  of  a  jettison  of  the  pigs.  There  was 
no  allegation  of  a  usage  for  underwriters  to  pay  for  such  an  article, 
so  carried  in  the  trade  insured  upon. 

But  that  was  probably  a  case  of  uniform  usage,  the  same  article 
being  always  stowed  in  that  manner.  This  would  leave  the  ques- 
tion open  as  far  as  that  case  is  concerned,  whether  the  fact  that 
an  article  is  sometimes  carried  on  deck,  and  sometimes  under,  con- 
stitutes a  usage  to  carry  on  deck,  of  which  the  insurers  are  bound 
to  take  notice,  as  being  in  effect  a  license  to  transport  it  in  that 
manner,  implied  by  the  mere  naming  of  the  article,  or  by  the  de- 
scription of  the  voyage. 

An  often-cited  ruling  of  Lord  EUenborough"^  amounts  to  the 
doctrine,  that  in  such  a  case  the  policy  attaches,  and  the  under- 

»  Milward  v.  Ilibbert,  3  Ad.  &  El.  3  Milward  v.  Hibbert,  3  Ad.  &  El. 

(X.  s.)  120.  (n.  s.)  120. 

2  Taunton  Copper  Co.  v.  Merchants'  4  Da  Costa  v.  Edmunds,  4  Camp. 

Ins.  Co.,  and  Smith  v.  Miss.  Fire  &  142. 
Mar.  Ins.  Co.,  supra. 


252  DESCRIPTION    OF   THE   SUBJECT.  [CHAP.  V. 

writers  are  liable,  whether  the  article  is  stowed  in  one  or  the  other 
way.  But  the  greater  weight  of  authority  favors  the  doctrine, 
that  in  such  case  the  underwriters  are  not  liable. i 

This  question  arises  in  connection  with  that  of  contribution,  for 
the  jettison  of  the  deck-load,  and  the  authorities  do  not  agree,  some 
being  in  favor  of  contribution,  others  against  it.~ 

If  there  is  a  contribution  for  the  jettison  under  the  general  usage 
of  the  trade,  without  any  special  stipulation,  then  the  insurers  are 
liable,  as  matter  of  necessary  inference,  to  reimburse  it  ;  for  all 
marine  policies,  insuring  against  the  usual  perils,  either  expressly 
or  by  implication,  insure  against  general  average. 

Where  the  jettison  of  the  article  is  not  the  subject  of  a  contri- 
bution by  the  ship,  cargo,  and  freight,  the  question  arises  whether 
the  insurers  are  liable  for  the  loss  of  the  article  by  jettison  under 
the  risk  of  '•'  perils  of  the  sea,"  and  if  the  usage  of  the  trade  author- 
izes the  carrying  it  indifferently  either  above  or  below  deck,  there 
is,  on  llie  part  of  the  policy,  precisely  the  same  ground  for  indem- 
nity by  the  insurers  as  in  any  other  case  whatsoever.  The  burden 
of  proving  an  exception  is  on  the  insurers.  The  common  form  of 
the  policy  says  nothing  about  the  manner  of  stowing.  By  con- 
struction, it  is  a  condition  that  the  article  insured  shall  be  properly 
stowed.  The  proper  stowage  of  almost  all  articles,  in  almost  all 
voyages,  is  in  the  hold.  Accordingly,  the  general  rule  is,  that 
goods  must  be  stowed  there.  But  where,  from  the  nature  of  the 
article,  it  can  properly  be  carried  only  on  deck,  it  is  as  much  a 
condition  tliat  it  should  be  so  carried,  as  in  other  cases  it  is  a  con- 
dition to  stow  in  the  hold. 

It  has  been  objected,  that,  in  respect  of  many  articles,  the  risk 
is  enhanced  by  their  being  on  deck.  This  may  be  so.  The 
question  then  is  as  to  notice,  and  is  the  same  between  all  the  par- 
ties respectively,  that  is,  the  shipowner  on  one  side,  and  the  ship- 

1  Taunton  Copper  Co.  I?.  Merchants'  pressly  cxchules  articles  carried  on 

Ins.   Co.,  22  Pick.  108;  Wolcott  v.  deck.     And  sec  Gould  v.  Oliver,  2 

Eagle  Ins.  Co.,  4  Pick.  4  29;  Backhouse  Mann.  &  Grang.  208;  and  Rogers  v. 

V.  Ripley,  1   l*ark,  Ins.  14  ;    Ross  v.  INIcchanics'  Ins.  Co.,  1  Story's  R.  G03, 

Thwaitc,  id.     The  form  of  policy  of  cited  supra,  No.  137. 

the    Lexington    (Ky.)   Ins.   Co.  ex-  2  ggc  chapter  on  General  Average. 


SECT.  II.]      CARGO,   GOODS,   WARES,  MERCHANDISE,   ETC.  253 

per  of  the  jettisoned  article  on  the  other,  or  the  other  shippers  and 
the  shipowner  on  one  side,  and  the  shipper  of  the  jettisoned  article 
on  the  other,  or  between  any  of  these  and  their  underwriters  ; 
namely,  Had  the  party,  whose  property  has  been  jettisoned  from 
the  deck,  notice  that  it  would  be  so  carried  ?  Had  another  ship- 
per, who  is  called  upon  for  contribution,  notice  that  the  jettisoned 
article  would  be  so  carried  ?  And  had  the  underwriter  on  the 
jettisoned  article,  or  on  any  other  interest  from  which  contribution 
is  demanded,  like  notice  ? 

First,  in  respect  to  the  shipper  of  the  jettisoned  article,  if  it  is 
one  that  requires  to  be  carried  on  deck,  there  can  be  no  pretence 
for  any  claim  by  the  shipper  against  the  carrier  for  any  loss  or 
damage  arising  from  its  being  stowed  there.  If  it  is  of  a  kind  that 
is  carried  above  or  under  deck  indifferently,  or  part  in  each  way,  as 
in  case  of  a  cargo  of  lumber  from  Quebec,  and  this  is  frequent  and 
ordinary  in  respect  of  such*  an  article  on  the  particular  voyage, 
and  can  be  presumed  to  be  well  known  to  every  body  conversant 
in  the  trade,  there  surely  can  1*  no  ground  for  imposing  an  extra- 
ordinary liability  upon  the  shipowner  for  damage  or  loss  on  an 
article  so  stowed.  As  between  these  parties,  surely  the  article 
must  be  considered  to  be  properly  carried. 

In  relation  to  the  liability  of  the  other  shippers  to  make  contri- 
bution for  the  jettison  of  the  article  under  these  circumstances,  the 
case  is  precisely  similar.  If  the  article  is  properly  stowed,  and 
there  is  good  ground  for  presumption  that  such  an  article  would 
be  so  carried,  it  does  not  appear  why  it  should  not  be  contributed 
for  as  well  as  any  article  differently  stowed. 

In  reference  to  the  underwriters,  the  same  rule  ought  to  hold,  in 
a  case  where  contribution  is  made.  But  further,  if  they  know  of 
what  kind  the  article  is,  and  are  presumed  to  have  notice  from  the 
usage  of  the  trade  that  it  may  be  carried  on  deck,  and  the  ship- 
owner is  not  liable  by  law  for  the  loss  of  the  article  by  jettison, 
nor  the  ship,  freight,  and  remainder  of  the  cargo  subject  to  contri- 
bution for  it,  it  does  not  appear  why  the  underwriters  should  not 
be  liable  for  such  a  loss  by  the  perils  of  the  seas,  as  well  as  for 
that  of  one  stowed  in  the  hold.  This  seems  to  be  plainly  and 
literally  a  loss  by  a  peril  insured  against. 
VOL.  I,  22 


254  DESCRIPTION    OF   THE   SUBJECT.  [CIIAP.  V. 

Upon  these  principles,  the  confusion  and  discrepancies  of  this 
part  of  the  commercial  law  may  be  remedied  ;  and  t  do  not  see 
any  other  way  of  escaping  from  the  perplexity  in  which  the  juris- 
prudence concerning  it  is  involved.  The  doubt  would  thus  be 
thrown  upon  the  facts  of  each  particular  case,  instead  of  hanging 
over  the  doctrines  of  the  law  as  at  present ;  and  this  difference  is 
of  incalculable  importance,  for  an  error  in  a  verdict  ends  with  the 
particular  case,  whereas  the  evils  of  inconsistency,  error,  and  ob- 
scurity in  doctrine  necessarily  spread  over  the  whole  current  of 
the  branch  of  jurisprudence  to  which  they  relate. 

I  accordingly  conclude,  that, 

If  by  the  description  of  (he  voyage,  or  the  character  of  the  arti- 
cle specif  ed  in  the  policy,  the  underwriter  may  he  'presumed  to  he 
apprised  of  a  usage  to  carry  it  on  deck,  the  policy  will  attach  to 
it  so  carried. 

The  reader  will  understand  this  to  be,  not  the  doctrine  esta- 
blished by  the  uniform  jurisprudence,  but  what  I  consider  to  be 
the  result  of  established  principles.* 

In  the  present  state  of  the  jurisprudence,  however,  the  only  sure 
way  of  settling  the  relative  rights  and  liabilities  of  the  several  par- 
ties, respecting  goods  carried  on  deck,  is  by  introducing  a  clause 
upon  this  subject  into  the  bill  of  lading  and  policy  of  insurance,  in 
those  branches  of  the  coasting  trade,  and  especially  in  those  of 
river,  lake,  and  canal  navigation,  in  which  it  is  usual  to  carry  cer- 
tain articles  on  deck.^ 

SECTION    III.       PROriTS. 

461.  A  policy  on  expected  profits  is  usually  made  on  the  sub- 
ject by  that  term. 

462.  An  insurance  on  ship  or  goods  specifically,  without  any 
indication   that  another  subject  is  intended,  cannot  he  applied  to 

1  Some  of  the  policies   on  inland  admit  and  regulate  the  liability,  in- 

transportation  contain  a  provision  on  stead  of  attempting  to  avert  it,  since 

this  siil)ject,  but  in  most  instances,  if  it  is  desirable   to  make  the  rules  of 

not  in  all,  to  exclude  the  risk  on  deck,  indemnity  as  broad  as  they  safely  can 

The  provision  more  needed  is  one  to  be. 


SECT.  IV.]  THE    SHIP.  255 

expected  profits.'^  Nor  will  a  policy  on  an  inn,^  or  a  theatre,^  cover 
the  profits  expected  to  accrue  from  conducting  the  specified  esta- 
blishment. 

It  was  decided  in  New  York,  that  an  insurance  "  at  and  from 
C.  to  N.,  in  and  with  the  schooner  R.,  on  profits"  on  all  goods 
laden  and  to  be  laden,  &z,c.,  which  goods  are  valued  at  ^2,500, — 
the  words  quoted  being  written,  —  was  a  policy  on  profits,  though 
the  valuation  seems  to  refer  more  directly  to  the  goods. "^  The 
written  part  of  the  policy  controls  the  printed,  and  here  the  insur- 
ance by  the  written  part  was  expressly  upon  profits. 

A  policy  "upon  goods,  and  also  upon  the  body  of  the  ship  E., 
the  said  ship,  goods,  and  merchandises,  for  so  much  as  concerns 
the  assured,  by  agreement  between  the  assured  and  assurers,  are, 
and  shall  be,  on  profits," — the  words  "on  profits"  being  written, 
and  the  rest  of  the  description  printed,  —  was  decided  to  be  a 
policy  on  profits.  And  Lord  Ellenborough  said,  "Are  profits  any 
thing  more  than  an  excrescence  upon  the  value  of  the  goods  be- 
yond the  prime  cost  ?  "  ^ 

It  is  said  in  one  case  to  have  been  the  practice  in  Philadelphia 
to  insure  profits  under  the  denomination  of  "  goods."  ^ 

A  right  to  a  certain  per  cent.,  proportion,  or  share  of  a  cargo  as 
commissions  on  profits,  or  instead  of  freight,  is  covered  under  the 
description  of  "  property."  '^ 

SECTION    IV.       THE    SHIP. 

463.  In  some  American  ports  ^  the  same  printed  form  of  policy 
is  used  for  ship,  cargo,  and  freight,  by  filling  the  blanks  with  the 
specification  of  the  subject  to  be  insured.  The  ship,  freight,  cargo, 
and  profits  may,  accordingly,  be  insured  for  the  same  party  in  one 

1  Lucena  v.  Craufurd,  5  B.  &  P.  269,  6  Prlchet  v.  Ins.  Co.  of  North  Ame- 
at  p.  315.  rica,  3  Yeates,  461. 

2  Wright  V.  Pole,  1  Ad.  &  EL  621.  7  Holbrook  v.  Brown,  2  IVIass.  R. 

3  Niblo  V.  North  American  Fire  280 ;  Wiggin  i*.  Mercantile  Ins.  Co., 
Ins.  Co.,  1  Sandf.  551.  7  Pick.  271 ;  supra,  No.  455. 

4  Mumford  i'.  Hallett,  1  Johns.  433.  8  Boston. 

5  Eyre  v.  Glover,  16  East,  218. 


256  DESCRIPTION    OF   THE   SUBJECT.  [CHAP.  V. 

policy.     But  if  only  the  ship  or  cargo  is  insured,  many  of  the  pro- 
visions in  the  printed  forms  will  be  wholly  inapplicable. 

In  most  American  ports,  two  distinct  printed  forms  are  used, 
one  for  the  vessel,  the  other  for  the  cargo  ;  and,  by  some  compa- 
nies, a  third  form  is  used  for  freight.  Other  distinct  forms  are 
again  in  use  for  steamboats,  canal-boats,  flat-boats,  Stc. 

In  a  distinct  common  form  for  the  vessel,  before  the  blank  space 
for  its  name  and  description  are  inserted  the  words  "upon  the 
body,  tackle,  apparel,  and  furniture,  of"  the  ship,  brig,  &;c., 
"called,"  he,  or  other  equivalent  specifications.  This  is  a  part 
of  the  time-honored  enumeration  in  the  English  policies,  namely, 
"  upon  the  body,  tackle,  apparel,  ordnance,  munition,  artillery, 
boat,  and  other  furniture  of  the  good  ship  or  vessel  called,"  &.c. 
Most  American  marine  policies,  however,  describe  the  subject  as 
^^the  ship,  brig,  schooner,  ^'•c,  A,'^  without  more  ;  and  therefore 
cover  ivhat  is  signified  by  such  a  description  in  such  a  contract. 

It  is  well  settled  that  a  policy  for  a  commercial  voyage  on  a 
vessel  generally,  without  any  further  specification,  covers,  not  only 
the  body,  but  also  the  rigging,  sails,  tackle,  boat,  armament,  and 
provisions,  and  all  the  appurtenances  necessary,  suitable,  or  usual, 
and  that  may  be  presumed  to  belong  to  a  vessel  of  such  descrip- 
tion, for  the  purposes  of  navigation  on  a  voyage  such  as  that  de- 
scribed.    The  rule  is  difl:erent  as  to  fishing  voyages.^ 

Mr.  Justice  BuUer  is  reported  to  have  said,  "  The  provisions 
are  no  part  of  the  thing  insured,"  meaning  the  ship  ;^  but  he  was 
speaking  in  reference  to  the  underwriters  being  liable  to  pay  for 
those  consumed  during  detention,  which  they  may  not  be,  though 
the  provisions  constitute  a  part  of  the  subject  under  the  policy. 
The  consumption  of  provisions  is  usually  only  a  part  of  the  ordinary 
expense  of  navigation,  and  is  no  more  a  subject  of  indemnity  than 
ordinary  wear  and  tear  and  decay  of  the  vessel. 

Lord  Mansfield  says  :  "  In  a  [)olicy  on  a  ship,  the  insurance  is 
on  the  body  of  the  ship,  tackle,  and  furniture  :  "  "^ 


1  Sec  Infra,  sect.  C.  2  i  x.  R.  127;  Eden  v.  Tole,  id. 

3  Robertson  v.  Ewer,  1  T.  R.  127.       132,  n. 


SECT.  IV.]  THE  snip.  257 

Lord  Ellenborough  :  "  The  hull  and  outfits  are  both  protected 
by  insurance  on  the  ship  :  "  ^ 

Weskelt :  "The  outfits  comprehend  sails,  cordage,  provisions, 
armament,  and  ammunition."  ^ 

In  Lord  Kenyon's  time,  the  assured,  in  a  policy  on  the  ship  and 
furniture,  recovered  for  a  loss  of  the  tackle  and  provisions.^ 

Lord  Ellenborough  says  :  "  As  far  as  the  outfit  consists  of  pro- 
visions put  on  board  for  the  use  of  the  crew,  they  are  covered  by 
an  insurance  on  the  ship,  being  in  fact  part  of  the  necessary  fur- 
niture, stores,  and  equipment  of  every  ship  proceeding  on  a  voy- 
age."^ 

Emerigon  says,  that  the  rigging  and  boat  are  covered  by  a  policy 
upon  the  ship.^ 

In  the  United  States  the  construction  is  the  same. 

464.  It  was  held  by  Lord  Lyndhurst,  and  the  other  judges  of 
the  English  Court  of  Exchequer,  that,  under  a  policy  upon  "  the 
ship,  tackle,  apparel,  ordnance,  munition,  boat,  and  other  furni- 
ture," the  boat  slung  upon  the  quarter  is  covered,  thlt  being  the 
usual  manner  of  carrying  the  boat  on  the  voyage  insured,  and  that 
evidence  of  a  usage  that  the  boat  was  not  covered  by  the  policy 
was  inadmissible,  as  being  inconsistent  with  the  policy.^ 

465.  The  question  has  been  made  in  Massachusetts,  whether 
the  description,  "  the  ship,^^  covers  the  boat  slung  at  the  stern 
davits. 

The  real  question  here  is,  not  whether  the  boat  is  covered  under 
this  description  as  part  of  the  outfit,  for  of  this  there  is  no  doubt, 
but  whether  the  carrying  of  the  boat  at  the  stern  is  a  proper  way  of 
carrying  it ;  or,  in  other  words,  whether  the  carrying  it  in  this  way 
is  an  enhancement  of  the  risk,  like  carrying  goods  on  deck,  and  so 
in  the  nature  of  a  deviation,  which  suspends  the  risk  on  the  boat 
as  it  does  on  goods,  while  carried  on  deck.  Whether  this  is  the 
result  in  respect  to  the  boat  depends  on  this  being  a  proper  or 


»  Forbes  v.  Aspinwall,  13  East,  323.  4  Hill  v.  Patten,  8  East,  373. 

2  Title,  Outfit,  p.  382.     See  also  5  Vol.  1,  p.  179,  c.  4,  s.  7. 

p.  433,  tit.  Provisions.  6  Blackett  v.  Royal  Exch.  Ass.  Co., 

3  Brough  V.  Whitmore,  4  T.  R.  206.  2  Cromp.  &  Jerv.  244. 

22* 


258  DESCRIPTION   OF   THE  SUBJECT.  [CUAP.  V. 

usual  way  of  carrying  it.  The  usage,  and  with  it  the  rule,  may 
be  different  in  respect  of  different  species  of  vessels,  or  different 
voyages.  In  the  Massachusetts  case  referred  to,  the  witnesses 
differed  as  to  the  usage,  and  as  to  its  being  safe  and  proper  to 
carry  the  boat  at  the  stern  ;  but  as  it  did  not  appear  from  the  testi- 
mony that  it  was  unusual,  or  an  extraordinary  enhancement  of  the 
risk,  it  was  ruled  that  the  boat  so  carried  was  covered  by  the  policy.^ 
That  is  to  say,  if  the  carrying  of  the  boat  so  slung  is  usual 
under  like  circumstances,  or  if  it  does  not  enhance  the  rislc  of  the 
boat,  and  that  unnecessarily ,  it  is  still  covered  under  a  policy  on 
the  "ship,''  as  one  of  its  appurtenances.  If  the  exigencies  of  the 
service  require  the  boat  to  be  so  carried,  there  is  no  need  of  resort 
to  usage. 

466.  A  policy  on  the  ship  covers  not  only  the  ship  as  it  may 
be  at  the  time  of  the  commencement  of  the  risk,  but  also  as  it 
may  be  altered  by  repairs."^ 

The  question,  however,  as  to  the  alteration  of  the  subject  so  as 
to  change  the  risk,  will  be  open  to  consideration  in  this  case,  as 
well  as  under  a  policy  on  a  house. 

467.  Whether  the  interest  of  the  mortgagee  of  a  ship  is  covered 
by  insurance  of  the  ship  declared  to  be  ''on  bottomry  ?" 

Insurance  on  the  interest  of  a  mortgagee  of  a  ship,  declared  in 
the  policy  to  be  "on  bottomry,  was  held  by  the  English  Common 
Pleas  not  to  cover  the  interest  of  the  assured,  though  the  insurance 
was  also  expressed  in  the  policy  to  be  on  the  body  and  tackle  of 
the  ship,  which,  if  this  part  of  the  description  was  considered  to 
be  of  force,  and  not  cancelled  by  the  expression  "on  bottomry," 
seems  to  have  been  sufficient,  since  a  mortgagee  may  insure  the 
subject  generally,  without  specifying  his  interest.^ 


1  Hall  V.  Ocean  Ins.  Co.,  21  Tick.  3d  ed.,  London,  p.  367,  decided,  as 
472.  Ml".  Justice  Parke  says,  -when  Lord 

2  12  East,  565  ;  4  Taunt.  367.  Kenyon  "was  new  in  his  office."    But 

3  Sinionds  v.  Hodgson,  G  Bing.  114.  the  point  in  Walpolc  v.  Ewer  seems 
Mr.  Justice  Park  puts  the  decision  to  be  different  from  that  in  Simonds 

upon  the  authority  of  Power  v.  Whit-  v.  Hodgson ;  nor  does  it  very  distinctly 

more,  4  M.  &  S.  141,  in  oj)i)osition  to  appear  that  Power  v.  Whitmore  pre- 

that  in  Walpole  v.  Ewer,  Marsh.  Ins.  scntcd  the  same  point. 


SECT.  IV. 


THE  SHIP.  259 


The  same  case  came  before  the  King's  Bench  on  error,^  where 
the  judgment  of  the  Common  Pleas  was  reversed,  and  the  descrip- 
tion of  the  subject  in  the  policy  held  to  be  good.  But  this  judg- 
ment was  given  upon  a  different  construction  of  the  instrument  on 
which  the  insurable  interest  depended.  Lord  Tenterden  says, 
that  the  words  of  the  instrument  were  :  "I  bind  myself,  my  ship 
and  tackle,"  &c.,  to  pay  the  sum  borrowed,  with  twelve  per  cent, 
bottomry  premium,  in  eight  days  after  my  arrival  at  the  port  of 
London.  We  are  of  opinion  that  the  words  'm}'  arrival'  must  be 
understood  to  mean  'my  ship's'  arrival."  Accordingly,  the  court 
thought  that  the  instrument  was  strictly  a  bottomry  bond. 

Supposing  the  instrument  to  have  been  a  mortgage,  and  not  a 
bottomry,  Lord  Tenterden  said  he  doubted  whether  such  an  in- 
strument would  answer  the  description  of  the  interest  in  the  policy. 
Accordingly,  his  opinion  coincided  with  that  of  the  Common  Pleas 
in  the  doctrine,  that  the  interest  of  a  mortgagee  is  not  covered  by 
the  term  "  bottomrj'." 

This  is  a  case  in  which  the  misdescription  of  the  interest  cannot 
have  happened  but  through  mistake.  It  is  to  be  borne  in  mind, 
that  the  court  must  make  the  same  rule  for  both  parties,  and  de- 
cide for  a  return  of  premium,  where  there  is  no  loss,  in  every  case 
where  they  would  decide  against  a  claim  for  a  loss  if  one  had  hap- 
pened. The  mistake,  supposing  the  insurance  to  be  held  to  be 
valid,  cannot  prejudice  the  underwriter,  provided  the  subject,  the 
interest  in  which  is  proposed  to  be  insured,  can  be  clearly  iden- 
ti6ed  by  the  description.  The  court  will,  for  these  reasons,  he 
justified  in  leaning  in  favor  of  the  validity  of  the  contract,  and, 
whether  the  claim  be  for  a  return  of  premium  or  for  a  loss,  will  be 
inclined  to  scan  the  policy  very  closely,  for  grounds  on  which  to 
countervail  the  misdescription. 

468.  Charts,  one  compass  or  more,  and  a  chronometer,  if  be- 
longing to  the  shipowner  and  requisite  for  the  ship  and  the  voy- 
age, are  properly  a  part  of  the  ship ;  and  they  are  allowed  as  such 
in  some  ports  at  least.^ 


1  3  B.  &  Ad.  50.  not  so,  it  seems,  in  Hamburg.    Be- 

2  They  are  so  allowed  in  Boston  ;    necke  on  Indemnity,  ed.  1824,  p.  459. 


260  DESCRIPTION   OF  THE   SUBJECT.  [CHAP.  V. 


SECTION    V.       FREIGHT. 

469.  Freight,  in  the  sense  of  earnings  of  the  vessel,  is  so  com- 
monly insured  eo  nomine,  that  jurisprudence  rarely  j/^csents  the 
question  what  other  term,  or  what  phrase,  will  be  equivalent.  The 
usual  inquiry  is,  What  interest  is  covered  under  this  term  1 

470.  A  policy  on  freight  generally,  for  successive  passages  or 
for  a  certain  period,  usually  applies  to  lohatever  amount  o^  freight 
may  he  pending  at  different  times  successively.^ 

471.  Where  the  owner  of  a  ship  is  also  the  owner  of  the  cargo, 
a  policy  on  ^^  freight "  will  cover  the  interest  on  the  transportation 
of  the  cargo  on  the  voyage,  namely,  that  which  he  has  in  placing 
his  soods  in  another  market.^ 

472.  A  policy  on  freight  "  at  and  from  "  a  place  does  not  cover 
freight  for  bringing  a  cargo  to  that  place. 

Freight  being  insured  "at  and  from  Riga  in  continuation  "  of  a 
former  policy  on  freight  "  to  the  Baltic,"  &.C.,  the  ship  was  seized 
at  Riga  before  the  outward  cargo  was  discharged,  and  accordingly 
the  freight  outward  was  lost.  Lord  Ellenborough  ruled  that  the 
description  did  not  apply  to  the  freight  lost,  but  to  that  of  the  re- 
turn cargo.^ 

473.  Insurance  on  '^freight "  generally,  to  a  certain  port,  is 
valid,  though  the  cargo  is  destined  to,  and  the  freight  payable  only 
on  arrival  at,  a  subsequent  port. 

Where  an  insurance  was  "on  freight  of  the  ship  Bethiah,  at 
and  from  Bourdeaux  to  Virginia,"  and  the  goods  were  to  be  car- 
ried in  a  ship  from  Bourdeaux  to  St.  Domingo,  by  the  way  of 
Norfolk  in  Virginia,  Lord  Kenyon  instructed  the  jury,  that  the 

1  Ilugg  V.  Augusta  Ins.  Co.,  7  How-  ~  Flint  r.  Lemyng,  1  B.  &  Ad.  45  ; 

ard's  Sup.  Ct.  11.  595.     See,  as  to  the  1  L.  &  W.  257  ;  Wolcott  v.  Eagle  Ins. 

amount  of  the  insurable  interest  to  Co.,  4  Pick.  429;  Dumas  v.  Jones,  4 

•wliich  a  policy  applies,  Davy  v.  Hal-  Mass.  R.  647.    See  also  Hart  v.  Dela- 

lett,  .'i  Caincs,  IG,  and  other  cases  cited  ware  Ins.  Co.,  2  Wash.  C.  C  R.  346. 

infra,  c.  14,  s.  1,  and  Palmer  v.  Black-  3  Bell  v.  Bell,  2  Camp.  475. 
burn,  and   other  cases  cited  in  the 
same  chapter,  b.  2. 


SECT,  v.]  FREIGHT.  261 

underwriters  had  a  right  to  expect  that  the  goods,  upon  which  the 
freight  was  payable,  were  consigned  to  Virginia,  and  that  the 
freight  payable,  namely,  that  from  Bourdeaux  to  St.  Domingo, 
being  different  from  the  freight  described  in  the  policy,  the  assured 
was  not  entitled  to  recover  any  thing.'  But  of  what  importance 
could  it  be  to  the  insurers  to  be  informed  to  what  place  the  goods 
were  to  be  carried  from  Norfolk,  or  in  what  ship  ?  Lord  Ellen- 
borough  said,  this  opinion  "  was  inconsistent  with  all  other  cases," 
and  accordingly,  upon  a  policy  on  freight  "  from  St.  Ubes  to  Ports- 
mouth," the  vessel  having  taken  cargo  at  St.  Ubes  for  Gothen- 
burg, with  the  intention  of  putting  into  Portsmouth  on  the  voy- 
age, he  said,  "  The  only  question  is,  whether  the  freight  of  a 
voyage  may  be  insured  a  part  of  the  way.  This  was  a  voyage  to 
Gothenburg  by  the  way  of  Portsmouth,  and  the  freight  was  to  be 
earned  at  Gothenburg.  The  assureds  did  not  deceive  the  under- 
writer when  they  insured  their  freight  to  Portsmouth  ;  they  did 
not  tell  him  that  the  freight  was  to  be  earned  there,  but  only  that 
it  was  an  insurance  on  freight  in  that  voyage."  ^  And  judgment 
was  given  for  the  assureds. 

So  also  under  insurance  on  freight  from  Teneriffe  to  New  York 
by  way  of  Cuba,  the  freight  of  goods  taken  at  Havana  was  covered.^ 

474.  A  policy  on  freight  at  and  from  one  port  to  another,  with 
leave  to  take  goods  at  intermediate  iiorts,  covers  the  freight  of 
the  goods  so  taken. 

Insurance  being  made  upon  freight  "from  Jamaica  to  the  United 
Kingdom,  with  leave  to  call  at  any  of  the  West  India  islands  to 
take  on  board  goods,"  the  description  was  held  to  apply  to  the 
freifjht  of  goods  taken  on  board  at  Havana.'^ 

475.  The  description  "  freight  on  hoard"  is  equivalent  to  that 
of ''freight"  merely  : 

Held,  that  "freight  on  board"  attached  to  freight  under  a  con- 
tract of  affreightment  as  soon  as  the  vessel  sailed  from  Cadiz,  on 
the  voyage  insured,  for  Sicily,  where  the  cargo  was  to  be  taken, 


1  Murdock    r.    Potts,   Park,   451;        3  Hughes  r.  Union  Ins.  Co.,  3  Wheat. 
Marsh.  326.  159. 

2  Taylor  v.  Wilson,  15  East,  324.  4  Barclay  v.  Stirling,  5  M.  &  S.  6. 


262  DESCRIPTION   OF   THE    SUBJECT.  [CIIAP.  V. 

in  the  same  manner  as  if  the  policy  had  been  on  "  freight,"  with- 
out more.i 

476.  The  rule  as  to  the  description  of  the  freight  of  articles 
on  deck,  is  the  same  as  in  reference  as  to  the  articles  them- 
selves.2 

If  the  articles  carried  on  deck  would  not  he  covered  under  the 
general  description  " cargo, ^'  "goods,""  merchandise,"  "pro- 
perty," &/'C.,  the  compensation  for  so  transporting  them  will  not, 
in  the  same  circumstances,  be  covered  under  the  general  descrip- 
tion ^^  freight.'^  ^ 

477.  The  assignee  of  freight  as  collateral  security,  or  on  other 
valuable  consideration,  may  effect  insurance  upon  it  generally, 
eo  nomine.^ 

478.  An  agreement  to  receive  a  certain  proportion  of  the  cargo 
for  transporting  it,  in  lieu  affreight,  or  as  freight,  gives  an  insura- 
ble interest  in  such  proportion  of  the  cargo,  which  will  be  covered 
lender  the  description  "^property  on  board.^^ 

So  held  in  respect  of  a  cargo  of  lumber.^ 

479.  The  freight  of  live  animals,  whether  carried  above  the 
upper  deck,  or  between  decks,  will  not  be  covered  under  the  gene- 
ral description  of  ''freight,^^  the  insurers  having  no  notice  of  the 
species  of  cargo.     It  was  so  held  under  a  time  policy.^ 

480.  Whether  a  charterer,  who  is  at  the  risk  of  the  freight,  can 
cover  his  interest  as  '' freight "  generally,  without  specifying  it  ? 

It  was  held  in  the  Supreme  Court  of  New  York,  Kent,  C.  J., 
Thompson,  Spencer,  Van  Ness,  and  Yates,  Justices,  that  the  inte- 
rest was  not  covered,  on  the  grounds  that  it  was  not  "  technically 
freight," — "was  founded  entirely  upon  the  agreement,"  —  that 
giving  it  efTect  "  would  be  an  imposition  upon  the  insurer,"  unless 
the  circumstances  were  disclosed,  —  and  that  "the  owners  have  a 


*  Robinson    i'.  Manufacturing  Ins.  ^  Wiggin  v.  Mercantile  Ins.  Co.,  7 

Co.,  1  Mete.  143.  Pick.  R.  271. 

■2  Sec  sect.  1,  supra.  c  Wolcott  v.  Eagle  Ins.  Co.,  4  Pick. 

3  Adams  r.  Warren   Ins.   Co.,  22  429.     See   also  AUegre's  Adm'rs  r. 
Pick.  1G:j.  Maryland  Ins.  Co.,  2  Gill  &  Johns. 

4  Paradise  v.  Sun  Mut.  Ins.  Co.,  G  13G  ;  S.  C,  G  Ilar.  &  Johns.  408. 
La.  Annual  Reports. 


SECT,  v.]  FREIGHT.  263 

Stronger  interest  in  the  equipment  and  management  of  the  vessel 
than  a  stranger  having  no  such  stake  in  the  voyage."  ^ 

These  grounds  are  by  no  means  satisfactory,  and  the  decision  is 
opposed  to  divers  others.  It  has  been  held  that  a  part-owner  who 
charters  the  whole  vessel  can  insure  the  whole  freight  generally, 
without  any  specification  of  his  interest;-  and  that  a  part-owner 
who  agrees  to  take  the  whole  ship  at  his  own  risk,  and  make  in- 
surance, may  insure  it  generally,  without  specifying  his  interest  ;3 
and  that  charterers  having  no  ownership,  who  have  agreed  to 
navigate  and  insure  the  ship  at  their  own  risk,  may  so  insure  it.^ 

The  doctrine,^  that  an  assignee  of  a  subject  for  a  valuable  con- 
sideration, or  by  having  a  mortgage  or  any  lien,  at  least  if  accom- 
panied by  possession,  may  make  a  valid  insurance  generally,  with- 
out specifying  his  particular  interest,  leads  to  the  same  result. 

This  doctrine,  and  the  cases  cited  above,  certainly  authorize  the 
proposition,  if  any  such  authority  is  needed,  that  a  charterer,  who 
is  the  only  person  interested  in  the  freight  or  a  part  of  it,  or  is 
bound  by  his  agreement  to  insure  it,  and  make  it  good  at  all  events, 
may  insure  it  generally,  to  the  amount  of  his  interest,  without  par- 
ticularly specifying  it. 

481.  It  has  been  distinctly  held  in  Massachusetts,  that  the  char- 
terer may  insure  the  amount  o^  freight  which  is  on  his  account 
and  risk,  under  the  denomination  of  ^^ freight ;  "  and  at  the  same 
time  the  owner  may  insure  his  interest  in  the  freight  by  the  same 
description,^  and  this  doctrine  is  supported  by  the  cases  above 
cited. 

An  insurance  was  made  "  at  and  from  New  York  to  the  port  of 
discharge  in  the  Mediterranean,  upon  the  freight  of  goods  laden  or 
to  be  laden  on  board  the  brig  Delia."  The  assured  had  sold  the 
vessel  with  the  reservation  of  the  right  to  receive  the  freight  for 
the  voyage  insured,  which  seems  to  make  his  interest  precisely 

1  Riley  v.  Delafield,  7  Johns.  522,  associates,  in  Oliver  v.  Green,  3  Mass. 
opinion  "  Per  Curiam."    See  also  Mel-     E..  133. 

len  V.  National  Ins.  Co.,  1  Hall's  R.  ^  Bartlettv.Walter,13Mass.R.267. 

Sup.  Ct.  of  City  of  New  York,  452.  5  Supra,  s.  1. 

2  Taylor  v.  Wilson,  15  East,  324,  6  Clark  v.  Ocean  Ins.  Co.,  16  Pick. 

3  So  held  by  Parsons,  C.  J.,  and  his  R.  289. 


264  DESCRIPTION   OF   THE   SUBJECT.  [CHAP.  V. 

that  of  a  charterer  who  agrees  to  pay  for  the  use  of  the  vessel  at 
all  events. 

482.  Money  advanced  by  the  charterer  to  the  shipowner,  on 
account  of  freight,  is  sometimes  insured  under  the  description  of 
"  money  advanced  "  for  "  sailing  charges  ;  "  "  on  freight,"  &;c.^ 
If  the  advance  is  made  on  the  credit  of  the  shipowner,  without 
any  assignment  or  pledge  of  freight,  or  lien  upon  it  for  reimburse- 
ment, it  gives  no  interest  in  the  freight.  To  connect  the  advance 
at  all  with  the  freight  as  a  subject  of  insurance,  the  reimbursement 
must  be  in  some  way,  in  some  degree,  subject  to  the  contingency 
of  freight  being  earned.  If  the  charterer,  by  freight  being  earned, 
either  by  carrying  his  own  goods  or  those  of  other  shippers,  is  to 
become  liable  to  pay  freight,  that  is,  in  effect,  is  to  have  a  fund  in 
his  own  hands  out  of  which  to  reimburse  himself  for  his  advances, 
then  he  has  an  interest  in  the  freight  to  that  amount.  And  if  this 
means  of  reimbursement  arises  on  his  charter-party  or  other  con- 
tract, then  the  interest  will  range  itself  under  some  of  the  heads 
of  mortgage,  assignment,  lien  with  control  and  disposition  of  the 
freight  when  realized,  or  trust,  already  considered  in  the  first  sec- 
tion of  this  chapter.  If  he  has  a  lien,  he  may  insure  freight 
eo  nomine,  to  the  amount  of  his  lien,^  or  as  "  freight  advanced."  ^ 

If  the  charterer  is  to  lose  the  amount  advanced  in  case  of  freight 
not  being  earned,  then  he  has  that  amount  of  freight  wholly  at  his 
risk,  and  may  insure  freight  to  such  amount,  eo  nomine.^ 

483.  If  the  charterer  is  liable,  in  case  of  freight  being  earned, 
to  pay  a  certain  sum  to  the  shipowner,  and  entitled  to  receive  or 
realize  a  greater  sum,  then  his  absolute  interest  in  freight  is  only 
the  excess  of  the  amount  to  be  received  over  what  he  is  liable  to 
pay.  Such  excess,  I  conceive,  is  all  that  he  could  cover  under  a 
general  insurance  on  freight  eo  nomine,  or  by  any  other  descrip- 
tion. 

1  Etches  V.  Aldan,  1  Mann.  &  R.  157.  account  of  freight  being  reimbursiblc, 

2  Kobbiiis  V.  New  York  Ins.  Co.,  1  in  case  of  freight  not  being  earned, 
Hall's  It.  Sup.  Ct.  of  City  of  New  sec  Saunders  r.  Drew,  3  B.  &  Ad. 
York,  .'ii.'j.  445;  Anonymous,  2  Shower,  283.   Per 

3  Sanson  v.  Bull,  1  J)all.  159.  Saunders,  C.  J.,  De  Silvalc  v.  Ken- 

4  On  the  question  of  advances  on  dall,  3  ]\I.  &  S.  37. 


SECT.  VI.]  SUBJECT   OF   FIRE   POLICIES.  265 

If  the  amount  to  be  paid  by  the  charterer  to  the  owner  is  equal 
to  that  which  he  will  receive,  both  depending  on  the  same  contin- 
gencies, the  charterer  has  no  insurable  interest  in  freight,  as  he  can 
neither  gain  nor  lose  by  its  being  earned  or  lost.^ 

484.  It  is  indifftrentf  in  reference  to  the  description  as  above, 
whether  the  interest  in  freight  is  in  the  whole,  or  only  a  certain 
proportion  of  it.^ 

SECTION    VI.       SUBJECT    OF    FIRE    POLICIES. 

485.  Fire  is  one  of  the  various  risks  insured  against  in  marine 
policies,  on  interests  in  the  ship,  freight,  or  cargo. 

Policies  against  fire  on  land  usually  insure  against  no  other  risk, 
and  the  insurance  is  mostly  upon  buildings  and  their  fixed  or  mov- 
able contents. 

The  terms  "goods,"  "wares,"  and  "merchandise,"  are  com- 
mon to  the  description  of  subjects,  in  both  species  of  policies  ;  the 
other  terms  of  description  are  mostly  different.  The  principles  of 
construction  as  to  the  description  are  common  to  fire  and  marine 
policies. 

486.  The  subject  must  he  so  described  that  it  can  be  identified. 
Where  it  cannot  be  determined  to  which  of  two  buildings  a  fire 

policy  is  applicable,  it  is  void  for  uncertainty.^  The  surrounding 
circumstances  and  other  evidence  may  doubtless  be  resorted  to  in 
case  of  this  ambiguity,  upon  the  principles  and  subject  to  the  rules 
applicable  to  other  written  contracts.^ 

487.  One  part  of  the  description  may  be  superseded  by  another , 
if  the  subject  is  thereby  clearly  identified.^ 

488.  It  has  been  held  in  Kentucky  and  Louisiana,  that  a  hus- 
band, being  entitled  to  the  rents  of  his  wife's  real  estate  for  life, 
and  having  the  right  of  tenancy  by  the  courtesy  in  case  of  his  sur- 
viving her,  may  make  a  valid  insurance  against  fire  upon  it,  to  its 


1  Cheriot  v.  Baker,  2  Johns.  346.  4  Supra,  No.  126,   130,  131,  132, 

2  Sanson  v.  Ball,  4  Dall.  459.  et  seq. 

3  Heath   v.  Franklin    Ins.   Co.,  1         &  Ibid. 
Cushing's  R.  257. 

VOL.  I.  23 


266  DESCRIPTION   OF   THE    SUBJECT.  [CIIAP.  V. 

full  destructible  value,  describiiig  it  as  "his^'  estate,  ivithout  spe- 
cifying his  interest,  or  the  capacity  in  which  he  insures.^  The 
ground  on  which  the  decision  must  be  supported  apparently  is, 
that  the  husband  is  trustee,  and  it  is  his  duty  to  preserve  and 
maintain  the  estate,  and  though  he  has  not  the  absolute  legal 
title,  he  may,  in  respect  of  insurance,  as  well  as  otlier  means  of 
maintaining  the  estate,  treat  it  as  a  legal  trust.  If  he  is  not  far 
advanced  in  life,  his  actual  interest  and  contingent  expectation 
may  be  nearly  or  quite  equal  in  value  to  the  destructible  part  of 
the  property. 

489.  The  terms  and  phrases  ''stock,'^  "  stocJc  in  trade,''  ''fur- 
jiiture,"  ''  household  furniture,''  and  the  like,  are  construed  in 
reference  to  the  description  of  buildings  in  which  it  appears  by  the 
policy  to  be  insured,  and  the  business  or  uses  referred  to  in  de- 
scribing the  subject. 

The  description  "stock  in  trade,"  in  a  specified  business,  in- 
sured against  fire,  includes,  besides  the  materials,  every  thing 
necessary  for  carrying  on  that  business. 

The  stock  of  a  mechanic  includes  his  tools  and  implements  ; 
that  of  a  merchant  will  differ  materially  from  that  of  a  farmer ; 
that  of  a  baker  includes  his  bread-troughs,  benches,  pans,  stoves, 
scales,  weights,  sieves,  baskets,  &z;c.^ 

A  coach-plate  maker  and  cow-keeper  was  insured  on  his  stock 
in  trade,  household  furniture,  "linen,"  wearing  apparel,  and  plate. 
His  house  was  burnt,  and  with  it  a  large  quantity  of  linen-drapery 
goods,  purchased  just  before  on  speculation  ;  and  the  question 
arose  whether  the  linen-drapery  was  comprehended  in  the  de- 
scription. Lord  Ellenborough  said  to  the  jury,  "I  am  clearly  of 
opinion  that  the  word  linen  in  tiie  policy  does  not  include  articles 
of  tiiis  description.  Here  we  may  apply  noscitur  a  sociis  ;  the 
preceding  words  are  'household  furniture,'  and  the  succeeding, 
'wearing  apparel  ;'  the  linen  must  be  household  linen  or  wearing 
apparel."  ^ 

1  Clark(!  V.  Firomon's  Ins.  Co.,  18  Co.,  2  Hall's  K.  Sui^.  Ct.  of  City  of 

La.  11.-131 ;  Franklin  Ins.  Co.  v.  Drake,  New  York,  490. 
2  B.  Monroe,  .01.  'J  Watchhorn  v.  Langford,  3  Camp. 

'  Moadinjier  v.  Mechanics'  Fire  Ins.  422. 


SECT.  VI.]  SUBJECT   OF   FIRE   POLICIES.  267 

A  fire  policy  upon  "stock,  household  furniture,  and  wearing 
apparel,  in  a  grocery  and  dwelling-house,"  was  held  by  the  Su- 
preme Court  of  Ohio  to  cover  wearing  apparel  intended  for  family 
use,  and  stock  exposed  for  sale,  but  not  smuggled  articles  of  linen 
secretly  stowed  away,  and  not  openly  exposed  for  sale,  no  such 
secreted  articles  having  been  mentioned  to  the  insurers,  or  to  their 
agents,  at  the  time  of  examining  the  premises  previously  to  mak- 
ing the  policy.^ 

A  policy  on  furniture  in  a  dwelling-house  is  applicable  to  arti- 
cles stowed  in  the  garret  for  want  of  room  in  other  parts  of  the 
house,  and  not  used  there,  but  brought  down  and  used  occasionally 
in  the  lower  apartments.^ 

Where  M.  was  insured  against  fire,  "  on  goods,  being  stock  in 
trade  on  consignment,  or  held  in  trust,"  the  assured  was  member 
of  the  firm  of  T.  St  M.,  and  the  goods  in  question  were  purchased 
by  that  firm,  for  the  price  of  which  T.  made  his  notes  payable  to 
M.,  by  whom  they  were  indorsed  and  paid,  and  passed  to  his  cre- 
dit in  the  books  of  the  firm.  They  were  purchased  on  the  joint 
account  of  T.  &;  M.,  to  be  sold  by  T.  for  their  joint  account,  M. 
being  largely  in  advance  to  the  concern  on  account  of  the  pur- 
chase. The  Supreme  Court  of  Louisiana  were  of  opinion,  that 
the  goods  were  covered  under  the  description  of  '"'stock  in  trade," 
in  a  policy  effected  in  the  name  and  on  account  of  M.^ 

A  policy  in  favor  of  a  ship-builder  on  his  stock,  consisting  of 
ship-timber,  including  planks,  futtocks,  knees,  locust,  standards, 
and  stagings,  contained  in  a  yard  bounded  by  "certain"  specified 
streets,  is  held  by  the  Supreme  Court  of  New  York  to  cover  locust 
capstans  lying  on  the  sides  of  one  of  those  streets  outside  of  the 
boundary  line  of  the  yard  proper,  as  distinguished  from  the  street, 
a  usage  being  proved  so  to  place  limber  on  a  street  adjoining  a 
ship-yard."* 

490.   The  description  '^ goods  held  in  trust "  ivill  not  be  con- 


1  Clary  v.  Protection  Ins.  Co.,  1  •*  Millaudon  v.  Atlantic  Ins.  Co.,  8 
Wright's  (Ohio)  R.  227.  La.  R.  557. 

2  Clarke  v.  Firemen's  Ins.  Co.,  18  "*  Webb  t\  National  Fire  Ins.  Co.,  2 
La.  K  431.  Sandf.  Sup.  Ct.  R.  497. 


268  DESCRIPTION   OF   THE   SUBJECT.  [CHAP.  V. 

strued  to  (tppli/  merely  to  goods  so  held  in  the  most  strict  meaning 
of  that  term. 

A  policy  with  that  description,  effected  by  a  commission  mer- 
chant, was  held  to  apply  to  his  interest,  on  account  of  his  advances 
and  commissions,  in  goods  consigned  to  him.^ 

491.  A  fire  policy ,  no  less  than  a  marine  one,  is  often  applica- 
ble to  a  subject  that  is  changing  in  value,  or  in  the  specific  articles 
constituting  it. 

A  policy  for  a  long  period  upon  goods  in  a  retail  shop,  applies 
to  the  goods  successively  in  the  shop,  from  time  to  time.^ 

A  fire  policy  on  "a  bark  now  being  built,"  identifying  it,  ap- 
plies to  it  in  whatever  state  of  progress  in  building."' 

492.  The  term  '^ house^'  in  a  policy  of  insurance,  is  held  in 
Louisiania  to  include  out-buildings  appurtenant  to  the  house.* 

493.  A  policy  on  an  unfinished  house  does  not  cover  wood- 
work prepared  for  it  and  deposited  in  an  adjoining  building.^ 

So,  a  policy  upon  "a  bark  now  being  built"  does  not  cover 
spars,  blocks,  and  other  articles  made  for  it,  and  ready  to  be 
attached  to  it,  remaining  in  the  yard  from  which  the  bark  was 
launched,  and  near  which  it  lies.^ 

494.  Under  a  policy  upon  a  "building  and  fixtures,"  parol 
evidence  is  not  admissible  to  prove  that  it  was  intended  to  cover 
furniture.''' 

495.  A  policy  by  lessees  on  a  building  occupied  for  a  specified 
business,  does  not  entitle  them  to  indemnity  for  loss  of  the  profits, 
while  the  damage  by  fire  is  repairing. 

So  held  in  respect  of  buildings  occupied  as  an  inn.^ 


1  Parks  V.  General  Interest  Ins.  Co.,  5  Ellmaker's  Ex'rs  v.  Franklin  Fire 
5  Pick.  3i.     Sec   also   Millaudon  v.  Ins.  Co.,  5  Penn.  11.  183. 

Atlantic  Ins.  Co.,  snpra.  c  Mason  v.  Franklin  Ins.  Co.,  12 

2  Lane  r.  Maine  Fire  Ins.  Co.,  3  Gill  &  Johns.  468. 

Fairfield,  4-4.  7  Holmes  v.  Charlestown  Mar.  & 

3  Mason  v.  Franklin  Fire  Ins.  Co.,  Fire  Ins.  Co.,  10  Mete.  211. 

12  Gill  &  Johns.  408.  8  Wright  v.  Pole,  1  Ad.  &  El.  621  ; 

^  Workman  v.  Ins.  Co.,  2  La.  II.  "Wright  v.  Sun  Fire  Office,  3  liawlc 

607.  &  Maun.  819. 


SECT.  VII.]  SUBJECT   OF   FISHING   VOYAGES.  269 


SECTION    Vir.       SUBJECT    OF    FISHING    VOYAGES. 

496.  The  subjects  in  Jishing  voyages  are  different  from  those 
in  mercantile  voyages. 

The  ship,  eo  nomine,  does  not  include  the  outfits.  The  earn- 
ings of  the  ship,  instead  of  being  freight,  are,  in  the  American 
fisheries,  a  certain  proportion  of  the  '•  catchings,"  "  takings," 
"fare,"  "stock,"  "cargo." 

The  men,  instead  of  wages,  are  entitled  to  a  certain  proportion 
of  the  proceeds  of  the  enterprise,  under  the  denomination  "shares" 
or  "lays." 

The  several  subjects  are  accordingly  described  in  policies  of  in- 
surance on  these  voyages,  partly  in  different  phraseology,  and 
partly  in  the  same  terms  with  different  meanings  from  those  in 
reference  to  commercial  voyages. 

497.  The  lines  and  fishing  tackle  of  a  vessel  employed  in  the 
Greenland  fishery  are  not  comprehended  under  a  policy  on  the 
"ship,  tackle,  and  furniture,"  ^  nor  that  of  "goods,"  nor  "cargo,'' 
but  arc  comprehended  under  "  outfit,'^  which,  says  Lord  Ellen- 
borough,  "in  a  fishing  voyage  principally  consists  in  the  apparatus 
and  instruments  necessary  for  taking  fish,  seals,  he,  and  the  dis- 
posing of  them  when  taken  in  such  manner  as  to  bring  home  the 
oil  or  other  produce  of  the  adventure."^ 

In  the  United  States  the  outfits  for  a  fishing  voyage  are  a  dis- 
tinct subject  from  the  ship,  and  are  generally  described  as  "outfit," 
which,  in  that  kind  of  fishery,  according  to  the  usage  of  New 
Bedford,  comprehends,  besides  the  implements  and  apparatus,  and 
certain  supplies  taken  on  board  for  prosecuting  the  voyage,  one 
quarter  of  the  catchings  in  substitution  for,  and  the  replacing  of, 
outfits  consumed,^  being  a  general  rule  for  keeping  the  amount 
insured  by  a  policy  on  the  interest  filled  up,  so  that  the  assured, 
as  nearly  as  may  be  by  any  general  rule  on  the  subject,  have  an 

1  Hoskins   v.   Pickergill,   3   Doug.         2  Hill  v.  Patten,  8  East,  373. 
222;  Park,  97;  Marsh.  Ins.  2d  ed.        3  Macy  v.  Whalinglus.  Co.,  OMetc. 
727.  354. 

23* 


270  DESCRIPTION    OF  THE    SUBJECT.  [CHAP.  V. 

amount  of  interest  covered  by  the  policy  proportional  to  the  pre- 
mium. 

In  the  American  fisheries  for  cod  and  mackerel,  it  seems  that 
the  provisions  are  supplied  by  the  men  for  themselves,  under  the 
description  "  small  general,"  so  that  they  are  not  covered  by  a 
policy  on  the  ship  or  its  outfit. 


SECTION   VIII.       REINSURANCE. 

498.  Whether  an  insurer  may  effect  reinsurance  on  the  insured 
subject  generally,  without  specifying  his  interest  in  the  policy  1 

It  was  formerly  held  in  Massachusetts,  that  in  reinsurance  the 
interest  must  be  specifically  described  to  be  that  arising  on  an 
insurance  of  the  same  subject  by  the  assured  in  a  former  policy. 
James  Prince,  having  underwritten  one  policy  on  The  Columbia 
and  cargo,  another  on  property  on  board  of  The  Columbia,  and 
another  on  effects  on  board  of  the  same  vessel,  was  reinsured  on 
"  The  Columbia  and  cargo,"  with  a  provision  that  the  reinsurers 
should  indemnify  him  against  all  losses  on  the  same  amount  under- 
written by  him  on  a  former  "  policy."  It  was  held  that  the  rein- 
surance extended  to  but  one  of  the  original  policies,  which  was  the 
policy  on  "  The  Columbia  and  cargo,"  as  only  this  one  answered 
to  the  description  in  the  policy  of  reinsurance.^ 

Mr.  Christian  says,  "  A  reassurance  must  be  expressly  mentioned 
to  be  a  reassurance  in  the  policy."  ^  But  the  case  cited  by  him  ^ 
does  not  appear  fully  to  support  the  position. 

Tiie  opposite  doctrine  has  been  adopted  in  New  York,  where  it 
has  been  held,  that  an  underwriter  may  effect  reinsurance  directly 
on  the  property  insured  by  him  against  the  risks  he  has  assumed, 
without  specifying  that  it  is  a  reinsurance,  but  describing  the  pro- 
perty as  in  an  original  insurance.* 

This  question  has  not  arisen  directly  in  England,  but  the  deci- 
sion of  analogous  cases  there  favors  the  doctrine  adopted  in  New 


'  Merry  v.  Prince,  2  Mass.  R.  17C.         ^  N.  Y.  Bowery  Fire  Ins.  Co.  v. 

2  Note  2  Bl.  Comm.  4 GO.  N.  Y.  Fire  Ins.  Co.,  1 7  Wend.  359. 

3  Andrce  v.  Fletcher,  2  T.  K.  IGl. 


SECT.  VIII.]  REINSURANCE.  271 

York.  Common  carriers,  in  respect  of  certain  risks  assumed  by 
them,  stand  in  the  position  of  underwriters,  and  it  has  been  held  in 
England,  that  they  may  make  a  direct  insurance  on  goods  carried 
by  them,  against  the  risks  which  they  assume  as  carriers.^ 

So  where  the  assured  transferred  his  ship,  agreeing  to  insure  it 
for  the  voyage  to  a  certain  amount,  it  was  held,  that  he  still  had 
an  insurable  interest  that  was  covered  by  the  policy  on  the  subject 
itself;  and  this,  by  the  terms  of  his  transfer,  was,  in  effect,  a  re- 
insurance.^ 

Other  cases  of  a  general  insurance  on  indirect  interests  have 
been  before  cited  to  the  same  effect.^  ^ 

The  reason  of  getting  reinsurance  may  be  that  the  underwri- 
ter thinks  unfavorably  of  the  risk,  so  may  the  original  assured, 
and  it  does  not  appear  to  be  any  greater  objection  to  a  general 
insurance  in  the  former  case  than  in  the  latter.  In  either  case, 
that  of  the  reassured,  as  well  as  the  assured,  the  insured  party  is 
bound  to  disclose  to  the  underwriter  all  the  material  unfavorable 
facts  which  are  not  presumed  to  be  known  to  him,  but  is  not 
bound  to  declare  his  own  opinion  of  the  risk. 

I  therefore  conclude  the  better  doctrine  to  be,  that  an  assured 
may  effect  reinsurance  directly  on  the  insured  subject  against  the 
risks  or  any  pari  of  the  risks  insured  against  in  the  original 
policy,  without  any  disclosure  in  the  policy,  or  otherwise,  that  it  is 
a  reinsurance. 

499.  But  a  practical  objection  may  arise  unless  a  reinsurance  is 
expressed  to  be  such  in  the  policy,  especially  if  made  in  the  com- 
mon form  of  either  a  marine  or  fire  policy,  on  account  of  the  usual 
stipulations  in  both  relative  to  notice  of  prior  and  subsequent  in- 
surance, apportionment  of  losses,  &c.,^  which  renders  it  expedient 
for  both  parties  that  it  should  be  so  expressed. 


>  Crowley  v.  Cohen,  3  B.  &  Ad.  4  See  Hone  v.  Mutual  Safety  Ins. 

478.     See  supra,  No.  424.  Co.,  1  Sandf.  137 ;  Mutual  Safety  Ins. 

2  Reed  V.  Cole,  3  Burr.  1512.  Co.  v.  Hone,  2  Comst.  235. 

3  Supra,  No.  419,  420,  et  seq. 


CHAPTER    VI. 

THE   PREMIUM. 

AT  CERTAIN  RATE  AMOUNT  MUST  DEPEND  ON  AMOUNT  AT  RISK. 


500.  The  contract  of  insurance  must  include  a  stipulation  for 
the  premium,  the  amount  or  the  rate  per  cent,  of  which  is  always 
expressed  in  the  policy.  As  the  underwriter  in  a  marine  poHcy 
on  goods  or  freight  is  liable  to  loss  and  entitled  to  retain  the  pre- 
mium only  as  far  as  the  subject  is  put  at  risk,  and  it  does  not 
appear  until  the  risk  has  commenced  what  amount  will  be  effect- 
ually insured,  the  policy  does  not  show  what  amount  of  pre- 
mium will  be  eventually  earned.  The  premium  is,  therefore, 
stated  in  such  policies  as  being  at  a  certain  rate  per  cent.  And  it 
is  usually  so  stated  in  a  policy  on  a  ship,  though  it  is  a  valued 
one. 

501.  The  amount  intended  to  be  insured  appears  in  some  cases, 
by  the  policy  itself,  to  be  uncertain,  as  in  a  policy  "on  money 
advanced  or  to  be  advanced,  for  the  use  of  the  ship,"  during  an 
India  voyage. ^ 

502.  Under  a  policy  upon  cargo  or  freight,  on  time,  or  for  suc- 
cessive voyages  or  passages,  it  is  not  unfrequently  in  contemplation 
of  the  parties,  that  the  amount  at  risk,  and  covered  by  the  contract, 
is  to  vary  at  successive  periods  ;  in  which  case  the  apportionment 
of  premium  between  the  successive  stages  of  the  risk  is  often  matter 
of  express  stipulation,  otherwise  it  is  a  question  of  construction, 
and  if  so,  usage  is  regarded. 

Where  the  insurance  was  on  a  cargo,  to  "be  valued  as  interest 
should  appear,"  for  six  months,  the  value  of  the  cargo  at  risk  dur- 
ing that  time  varied  from  1,500  to  more  than  5,000  dollars.     It 

1  Sec  chapter  14.  23  Burr.  1712. 


CHAP.  VI.]  THE   PREMIUM.  273 

was  held,  on  the  ground  of  a  usage  to  that  effect  in  Philadelphia, 
that  the  premium  was  to  be  estimated  at  the  specified  rate  on  the 
value  on  board  at  successive  periods,  and  for  the  lime  during  which 
it  remained  on  board.^ 

503.  In  fire  policies,  and  life  policies,  the  amount  at  rislc  and 
that  of  ihe  iiremium  arc  iisualhj  specified  in  the  jJoUci/  at  a  certain 
sum,  without  naming  the  rate  per  cent.,  since,  the  amount  insured 
being  usually  fixed  and  remaining  the  same,  that  of  the  premium 
which  will  be  due  is  known  at  the  time  of  making  the  contract. 

504.  '^ Runiiing,"  or,  as  they  are  also  called,  '^open^'  policies, 
in  reference  to  "open  "  accounts,  appUcahle  to  successive  shipments 
or  varying  amounts  of  a  specified  kind  of  subjects,  as  goods,  goods 
in  trust,  goods  on  consignment,  goods  to  be  stored  in  a  certain 
storehouse,  from  time  to  time,  &;c.,  are  not  unfrequenily  made,  in 
which  the  amount  of  premium  accruing  at  successive  periods  will 
vary  with  that  of  the  subject.  In  such  policies,  the  rate  per  cent, 
of  ll>e  premium,  or  some  criterion  other  than  the  limit  of  the  great- 
est amount  that  can  be  covered,  must  be  stated  in  the  policy,  in 
order  to  determine  how  much  premium  may  accrue  under  it.^ 

505.  The  premium  on  the  whole  amount  insured  is  usually  con- 
sidered to  be  due  on  delivery  of  the  policy  for  the  whole  voyage, 
or  other  period  of  the  risk  in  a  marine  policy  ;  for  the  whole  or 
a  certain  period  or  proportion  in  a  fire  policy ;  and  for  one  year  in 
advance  in  a  life  policy  ;  though  not  always  then  wholly  payable. 

506.  In  England,  the  premium  on  a  marine  insurance  is  payable 
on  demand.  The  broker,  who  effects  the  policy,  generally  keeps 
a  running  account  with  the  underwriters,  and  gives  them  credit  for 
the  premiums  received  or  due  from  the  assured,  out  of  which  he 
pays  such  losses  as  accrue  on  policies  put  into  his  hands  by  the 
assured  to  be  settled.  He  has  a  similar  running  account  ivith  the 
assured,  whom  he  charges  with  the  premiums,  and  credits  with 
losses.  He  settles  with  each  from  time  to  time,  accordino-  to  the 
custom  of  the  place,  or  agreement. 

1  Pollock  V.  Donaldson,  3  Dall.  510.     frequently  applied  in  another  sense, 

2  The  denomination  of  "open"  {loli-     in   contradistinction   to   a   "valued" 
cy  tends  to  ambiguity,  since  it  is  most     policy. 


274  THE    PREMIUM.  [CIIAP.  VI. 

507.  Ill  England  the  premium  on  a  marine  policy  is  due  from 
the  assured  to  the  broker,  and  from  the  latter  to  the  underwriters. 
The  broker  has  an  action  against  the,  assured  for  the  premium  ; 
and  the  underwriters  against  the  broker.  All  other  claims  and 
liabilities  arising  on  the  policy  are  between  the  assured  and  the 
underwriters.^ 

508.  In  the  United  States  an  insurance  broker  is  not  distin- 
guished from  other  brokers  and  agents  ;  not  being  himself  a  party 
in  respect  of  the  premium  any  more  than  in  respect  of  any  other 
liability  or  claim  arising  on  the  contract  negotiated  by  him  for  his 
principal,  unless  he  becomes  so  by  special  agreement. 

Where  the  assured,  at  the  time  of  effecting  the  policy,  requested 
the  broker  to  charge  him  in  account  with  the  premium,  Sewall,  J., 
giving  the  opinion  of  the  court,  said,  "There  can  be  no  reason 
against  the  action  in  the  name  of  the  broker,  where  a  note  has 
been  given  to  him,  or  he  has  become  a  creditor  of  the  assured  at 
his  request."  ^ 

In  the  absence  of  any  such  special  agreement,  the  parties  to  the 
policy  are  such  in  respect  of  the  premiums. 

509.  In  England,  very  much  of  the  marine  insurance  is  done  by 
individual  underivriters,  though  mutual  insurance  by  shipowners 
seems  to  be  coming  into  practice  there.  Fire  and  life  insurances 
are  done  mostly  by  companies. 

510.  In  the  United  States,  nearly  the  whole  business  of  insur- 
ance of  all  kinds  is  done  by  companies,  stock  or  mutual,  and  the 
premium  note,  where  one  is  given,  is  made  payable  to  the  company, 


1  For  the  history  of  this  practice  East,  382 ;   Minnett  v.   Forrester,  4 

and  the  jiirispriidcnce  in  reference  to  Taunt.  541;   Gumming  v.  Forrester, 

it,  sec  Marsh.  Ins.  c.  8,  s.  2 ;  Fowke  1  M.  &  S.  494  ;  Koster  v.  Eason,  2  M. 

V.  Pensack,  2  Lev.  153  ;  Jackson  v.  &  S.  112;  Parker  v.  Beasley,  2  M.  & 

Colegrave,  Carthew,  338;    Grove  v.  S.  423;    Houstoun    v.   Robertson,    2 

Dubois,  1  T.  R.  112  ;  Airy  v.  Bland,  Marsh.  R.  138;  G  Taunt.  448;  1  Holt, 

Park,  3G  ;  Marsh.  Ins.  294;  Bize  v.  88  ;  Curry  u.  Bland,  Park,  Ins.,  8th  ed. 

Dickason,  1  T.  R.  285 ;  Edgar  v.  Fow-  8H. 

ler,  3  East,  222 ;  Edgar  v.  Bumstcad,  ^  Taylor  v.  Lowell,  3  Mass.  R.  331, 

1  Camp.  411  ;  l)e  (jlaminde  r.  Pigou,  at  p.  352. 
4  Taunt.  210;   Parker  v.  Smith,  16 


CHAP.  VI.]  THE   PREMIUM.  275 

and  if  negotiable  may  be  assigned  by  the  company  and  the  assured 
thereby  made  liable  to  pay  it  to  the  indorsee,  though  a  loss  may 
have  accrued  and  become  due  to  him  for  a  greater  amount,  before 
the  note  is  payable.^  But  these  notes  are  rarely  negotiated,  and 
frequently  a  right  is  stipulated  for  to  set  off  a  loss  against  the  note, 
and  the  note  against  a  loss. 

As  the  term  of  credit  in  marine  policies  commonly  exceeds  the 
usual  length  of  the  voyage,  it  is  in  most  instances  known  before 
the  premium  note  is  payable,  whether  any  claim  has  accrued  for 
a  loss  or  return  of  premium,  and  only  the  excess  of  the  demand  of 
either  party  over  that  of  the  other  is  actually  paid.^ 

511.  In  mutual  fire  insurance  in  the  United  States,  the  insurers 
usually  have  a  lien  on  the  insured  huildi^ig  and.  the  land  belong- 
ing to  it,  to  secure  the  payment  of  the  premium  note  or  any  assess- 
ments for  which  the  policy  is  liable  for  raising  funds  to  pay  losses. 

512.  The  usual  form  of  the  policy  contains  a  clause  by  which 
the  insurers  confess  themselves  to  have  been  paid  the  premium. 

Where  a  negotiable  note  is  given  for  the  premium,  this  is  a  suffi- 
cient payment  to  be  the  ground  of  such  a  receipt.  In  England, 
where  such  a  note  does  not  appear  to  be  usually  given,  questions 
have  arisen  respecting  the  effect  of  this  acknowledgment. 

Mr.  Marshall  ^  says,  "  An  action  will  lie  for  the  premium,  not- 
withstanding this  formal  acknowledgment  of  the  receipt  of  it  in  the 
policy,  which  is  not  inserted  there  as  conclusive  evidence  of  the 
actual  payment,  but  to  preclude  the  necessity  of  proving  it  in  case 
of  loss."     The  same  reason  is  given  by  Mr.  Campbell.^ 

In  acknowledging  the  receipt  of  the  premium,  the  parties  adopt 
the  form  used  in  deeds  of  conveyance  of  land,  which  contain  a 
like  acknowledgment.  The  same  form  is  used  in  other  instru- 
ments. 

It  is  very  proper  that  the  receipt  of  the  premium  should  be 


1  Furniss  v.  Gilchrist,  1  Sandf.  53.  Warren  v.  Ocean  Ins.  Co.,  16  Maine 

2  By  a  by-law  of  a  Maine  insurance  R.  439. 
company,  the  policy  -when  executed  ^  Page  335. 

and  recorded  is  binding,  though  no  ■*  1  Camp.  534,  n. 
premium  note  has  then  been  given. 


276  THE   PREMIUM.  [CIIAP.  VI. 

acknowledged  in  England,  where  it  is  paid  at  the  tintie  of  subscrib- 
ing the  policy,  or  is  a  debt  due  from  the  assured  to  the  broker, 
who,  instead  of  the  assured,  becomes  the  debtor  of  the  insurer ;  or 
in  the  United  States,  where  it  is  paid,  or  the  assured  makes  a  pro- 
mise in  writing  to  pay  it.  If  an  underwriter  in  the  United  States 
acknowledges  a  receipt  of  the  premium,  without  receiving  a  note, 
or  in  England,  without  the  intervention  of  a  broker,  he  subscribes 
an  instrument  in  a  form  adapted  to  the  general  practice,  when  he 
himself  departs  from  that  practice.  According  to  the  general  prac- 
tice, the  acknowledgment  is  substantially  true. 

513.  In  regard  to  the  effect  of  the  acknowledgment,  it  was  for- 
merly made  a  question,  whether  the  underwriter  could,  notwith- 
standing it,  maintain  an  action  against  the  assured  for  the  pre- 
mimn} 

It  was  supposed  that  such  an  action  might  be  maintained,  which 
led  to  the  above  ingenious  construction,  as  Mr.  Park  considers  it, 
of  the  acknowledgment. 

There  are  English  cases  in  which  the  insurer  has  recovered  the 
premium  of  the  assured,  where,  if  he  had  not,  an  effect  would  have 
been  given  to  fraudulent  dealing.  F.,  of  Pillau,  promised  a  con- 
signment of  goods  to  G.,  of  London,  a  young  man  just  beginning 
business,  who  obtained  insurance  on  the  goods  upon  the  credit  of 
this  promise,  the  insurers  supposing  he  would  thus  be  supplied 
with  funds  to  pay  the  premium.  F.  consigned  the  goods  to 
another  merchant,  and,  a  loss  happening,  and  a  claim  for  return  of 
premium  accruing,  the  insurer  claimed  the  right  to  set  off  the  pre- 
mium. The  court  allowed  it,  with  severe  remarks  on  the  conduct 
of  F.2 

In  another  case,  H.,  an  insurance  broker,  being  indebted  to  S., 
and  not  able  to  pay  him,  S.  proposed  that  H.  should  procure 
insurance  for  him  until  the  premiums  should  amount  to  his  debt. 
Thus  H.  would  be  left  indebted  to  the  insurers  for  the  premiums, 
and  S.'s  debt  be  discharged.  The  insurances  were  accordingly 
effected.  But  the  insurers,  learning  the  purpose  of  the  broker  and 
the  assured,  brought  suits  against  S.  for  the  premiums.     The  jury, 

>  Tark,  35  ;  Marsh.  335.  2  Foy  v.  Bell,  3  Taunt.  492. 


CHAP.  VI.]  THE   PREMIUM.  277 

however,  being  of  opinion  that  tlie  broker  alone  was  debtor  for 
these,  found  in  favor  of  the  assured.  But  the  court  was  dissatisfied 
with  their  verdict,  and  would  have  granted  a  new  trial  had  not  the 
matter  been  settled  by  the  parties.^ 

514.  Where  there  is  no  such  reason  for  controlling  the  effect 
of  the  acknowledgment,  the  ijisnrcr  has  been  held  in  England  to 
he  estopped  by  it  from  demanding  the  premium  of  the  assured, 
and  from  denying,  as  between  himself  and  the  assured,  that  he 
had  received  it? 

515.  It  does  not  appear  that  there  is  any  material  distinction 
between  this  acknowledgment  in  a  policy  of  insurance  and  in  other 
instruments,  —  respecting  which  the  prevailing  doctrine  is,  that 
the  acJcnoivledgment  of  payment  in  a  deed  of  conveyance,  though 
it  estops  the  grantor  from  alleging  want  of  consideration,  is  only 
primd  facie  evidence  of  payment,  which  may  be  rebutted  ;  ^  espe- 
cially in  reference  to  a  third  party,"*  or  in  reference  to  a  question 
of  mistake,  or  to  fraud  by  another  party  than  the  one  offering  evi- 
dence to  contradict  the  acknowledgment.^ 

The  rule  is  equally  applicable  to  the  contract  of  insurance.^ 

516.  Where  the  underwriter  hnoioingly  accepts  the  agreement 
of  another  than  the  assured,  to  pay  the  premium,  the  assured  is 
discharged  from  liability  for  it,  independently  of  any  acknowledg- 
ment of  the  receipt  of  it  in  the  policy." 

But  as  marine  policies  in  the  United  States  generally  contain  a 
provision  that  the  underwriter  shall  have  a  right  to  set  ofFthe  pre- 
mium, if  unpaid,  against  any  loss  that  may  accrue  on  the  policy, 
this  subjects  the  assured  to  such  set-off.  though  the  broker's  note 


1  Mavorr.  Simeon,  3  Taunt.  497,  n.  460;  Bowen    v.  Bell,  20   Johns.  R. 

2  Dalzell  V.  Muir,  1  Campbell,  532  ;  338. 

Gumming  v.  Forrester,  1  M.  &  S.  499.  4  Mellick  v.  Peterson,  2  Wash.  C.  C. 

3  See    numerous    cases    cited.     1  R.  31. 

Greenl.  Ev.,  s.  29,  n.,  and  1  Phil,  on  ^  "Wilkinson  v.  Scott,  1 7  Mass.  R. 

Ev.  by  Cowen,  p.  108,  n.  194,  and  p.  249  ;  Clapp  v.  Tlrrill,  20  Pick.  R.  24  7. 

549,  n.  964 ;  Tyler  u.  Carlton,  7  Greenl.  ^  Pennsylvania  Ins.  Co.  v.  Smith,  3 

R.  175 ;  Belden  v.  Seymour,  8  Conn.  Whart.  R.  520. 

R.  304 ;  M'Crea  v.  Purmont,  16  Wend.  7  Power  v.  Butcher,  10  B.  &  C.  329. 
VOL.  I.                          24 


278  THE   PREMIUM.  [CHAP.  VI. 

for  the  premium  may  have  been  taken  by  the  underwriter  know- 
ing him  not  to  be  the  assured.^ 

517.  If  the  underivriters  have  no  reason  to  suppose,  from  the 
application  or  otherwise,  that  the  policy  is  effected  for  any  other 
than  the  applicant,  it  has  been  held  that,  though  the  agent  gives 
his  note  for  the  premium,  his  principal,  the  party  actually  insured, 
is  liable  for  it  to  the  insurers- 

So,  where  the  party  effecting  a  policy  "for  whom  it  might  con- 
cern" gave  his  negotiable  note  for  the  premium,  on  a  shipment  of 
goods  of  which  he  was  to  have  the  profit  and  bear  the  loss,  it  was 
held  in  Pennsylvania,  that  the  owner  of  the  goods  was  liable  for 
the  premium.^ 

518.  Authority  to  effect  a  policy,  is  such  to  sign  a  note  for 
the  premium  as  agent  of  the  assured,  where  it  is  customary  to 
give  such  notes,  and  the  principal  is  conusant  of  the  custom,'* 

519.  A  negotiable  note  for  the  premium  of  an  illegal  insur- 
ance, payable  to  the  broiler  or  his  order,  cannot  be  recovered.^ 

520.  A  risk  incurred  being  requisite  to  make  a  premium  due, 
it  is  in  the  poiver  of  the  assured,  by  not  putting  the  whole  or  a 
part  of  the  property  at  risk  within  the  terms  of  the  policy,  to  de- 
feat the  contract  in  whole  or  in  'part. 

This  is  an  indulgence  allowed  by  the  law  to  this  species  of 
contract,  and  is  considered  to  be  an  implied  condition  upon  which 
it  is  entered  into,  because  it  is  often  impossible,  at  the  time  of 
effecting  the  policy,  for  the  assured  to  know  whether  any  or  what 
part  of  the  property  insured  will  be  at  risk  ;  and  it  would  be  a 
hardship,  and  a  great  discouragement  to  insurance,  if  the  assured 
were  obliged  to  pay  the  premium  where  no  risk  is  run  by  the  in- 
surer, merely  because  he  is  ready  to  run  the  risk. 

521.  According  to  the  French  law,  where  the  premium  is  for 

1  llurlhut    V.    Pacific   Ins.    Co.,   2  4  Stackpole  r.  Arnold,  11  Mass.  R. 

Sumnor,  471.  27. 

-  Patai)«co  Ins.  Co.  r.  Smilli,  C  liar.  5  Russell  v.  Dcgrand,  15  Mass.  R. 

&  JolinH.  l('>i'< ;  Pennsylvania  Ins.  Co.  35  ;  Gray  v.  Sims,  3  AVash.  C.  C  R. 

i\  Smith,  3  Wliart.  520.  27C. 

8  Pennsylvania  Ins.  Co.  v.  Smith,  3 
Whart.  520. 


CHAP.  VI.]  THE   PREMIUM.  279 

a  voyage  out  and  home,  and  the  vessel  arrives  at  her  port  of  des- 
tination, but  the  risk  on  the  homeward  voyage  does  not  com- 
mence, only  two  thirds  of  the  premium  will  become  due.^ 

522.  In  the  United  States,  according  to  the  provisions  of  the 
policies  of  some  ports,  and  according  to  the  practice  in,  at  least, 
some  others,  where  the  policies  contain  no  provision  on  the  sub- 
ject, the  premium,  though  entire  for  the  voyage  round,  or  for 
successive  passages,  becomes  due  only  for  those  passages  which 
are  commenced  ;  and  if  any  passage  is  not  commenced,  the  pro- 
portional part  of  the  premium  for  that  passage  does  not  become 
due,  unless  a  loss  has  taken  place  on  the  previous  passages.^ 

523.  The  fund  raised  by  premiums  is  the  resource  of  insurance 
companies,  whether  marine,  fire,  or  life,  for  the  payment  of  losses. 
Stock  companies  and  companies  mixed,  of  a  stock  and  mutual 
character,  depend,  besides,  on  the  amount  of  capital  paid  in. 
Some  mutual  insurance  companies,  as  well  as  some  mixed  and 
stock  companies,  provide  for  the  personal  responsibility  of  the 
members,  or  grant  liens  on  their  property,  for  assessments  and 
contributions  for  the  same  purpose,  in  addition  to  the  paid  pre- 
miums. 

In  many  mutual,  marine,  and  fire  companies,  an  amount  is  paid 
in  or  a  promissory  note  is  given  by  members,  having  the  double 
character  of  premiums  advanced  and  capital,  or  of  premium  notes 
and  stock  notes,  being  at  first  capital,  or  stock  notes,  and  assum- 
ing the  character  of  paid  premiums,  or  premium  notes,  by  degrees, 
from  time  to  time,  as  the  member  may  effect  insurances,  until  his 
premiums  shall  cancel  the  whole  amount  of  his  advanced  payment 
or  notes. 

Insurance  companies,  both  fire  and  marine,  are  chartered  in  the 
different  States  with  a  great  variety  of  such  provisions,  for  advanc- 
ing funds  or  making  good  the  deficiency  of  premiums  for  the  pay- 
ment of  losses. 

An  act  which  was  passed  in  New  York  in  1843,  called  the 


1  Emerigon,  c.  3,  s.  1 ;  Potli.  Ass.        2  See  chapter  on  Return  of  Pre- 
n.  185,  187  ;  Code  de  Commerce,  No.    mium. 
356. 


280  TEE   PREMIUM.  [CUAP.  VI. 

Pattern  Act,  authorizes  the  voluntary  formation  of  mutual  insur- 
ance companies,  the  members  of  which  are  required  to  give  their 
promissory  negotiable  notes  in  advance,  to  a  certain  amount,  to 
set  off  against  premiums  on  policies  to  be  subsequently  effected, 
equivalent  to  the  notes  and  interest.  Where  the  same  had  been 
discounted  to  raise  funds  to  meet  liabilities,  the  subscribers  are 
held  to  be  liable  to  the  indorsees  for  their  full  amount,  though 
insurance  had  been  made  in  favor  of  the  same  subscribers,  the 
premiums  on  which  would  have  been  subject  to  be  set  off  on  the 
notes,  had  the  same  remained  in  possession  of  the  association.^ 
And  the  same  rule  prevails  in  respect  to  a  note  substituted  for  the 
original  deposit  note  for  a  part  of  its  amount.^ 

The  agreement  of  the  company  to  take  risks,  and  the  similar 
notes  and  agreements  made  by  other  members,  and  the  interest  to 
be  allowed  to  the  maker  of  the  note  on  its  excess  over  his  pre- 
miums at  the  end  of  each  year,  were  all  held  to  be  a  sufficient 
consideration  for  the  note,  besides  that,  by  virtue  of  the  statute 
the  notes  were  valid  independently  the  consideration.^ 

A  bona  fide  settlement  of  account  and  estimated  liabilities,  with 
the  maker  of  such  a  deposit  note  by  an  authorized  officer  of  the 
company,  and  surrender  of  it  to  be  cancelled,  the  maker  having 
sold  his  insured  property,  was  held  by  the  Supreme  Court  of  New 
York  to  exonerate  him  from  further  liability  for  prior  as  well  as 
for  subsequent  losses."* 

A  member  of  an  insurance  company  being  entitled  to  have  the 
amount  of  payments  for  premiums  on  policies  issued  on  his  appli- 
cation indorsed  on  his  deposit  note,  is  held  by  the  Superior  Court 
of  New  York  to  be  entitled  to  credit,  in  like  manner,  for  premiums 
which  111'  procures  to  be  paid  by  others.^ 

J  Dcraismcs  v.  ^Merchants'  ]Mut.  Ins.  3  Dcraismes  v.  Merchants'  Mut.  Ins. 

Co.,  1  Comslock,  371 ;  Cruikshank  v.  Co.,  1  Comst.  371, confirmed  in  Brown 

Brouwer,  11  Barb.  (N.  Y.)  Sup.  Ct.  v.  Crookc,  4  Comst.  51. 

R.  228  ;  an<l  .sec  IMerchants'  Mut.  Tns.  4  HyJc  v.  Lynde,  4  Comst.  387. 

Co.  V.  Key,  1  Sandford,  184  ;  Hone  v.  5  Emmet  r.  Reed,  4  Saudf.  R.  Sup. 

Ballin,  1  Sandf.  181.  Ct.  N.  Y.  229. 

2  Crooke  v.  Mali,  1 1  Barb.  (N.  Y.) 
Sup.  Ct.  R.  205. 


CHAP.  VI.]  THE   PREMIUM.  281 

Where  such  a  note  is  made  payable  to  the  maker's  order,  and 
deposited  with  the  association  without  being  indorsed  by  him,  a 
court  of  equity  will  enjoin  him  to  indorse  the  note  that  the  asso- 
ciation may  get  the  same  discounted,  and  apply  the  proceeds  in 
discharging  its  liabilities. ^ 

The  maker  of  such  a  note  is  liable  for  the  same  to  the  associa- 
tion, so  far  as  its  payment  is  necessary  to  meet  the  liabilities  of  the 
company,  though  insurance  has  been  made  in  favor  of  the  maker, 
and  no  premium  has  accrued  on  account  of  the  note.^  And  the 
liability  on  such  a  renewed  note  is  the  same  as  on  the  original 
one.^  And  if  such  a  note  is  given  up  to  the  maker  by  the  trus- 
tees of  the  association  without  its  payment,  the  receiver  appointed 
for  the  settlement  of  its  concerns  may,  notwithstanding,  recover 
against  the  maker  the  excess  of  the  amount  of  the  note  over  that 
of  the  premiums  to  be  credited  to  him  upon  it."* 

Where  the  maker  took  out  a  large  policy,  and  gave  a  note  for 
the  premium,  intending  that  it  should  figure  as  part  of  the  avail- 
able funds  in  an  exhibit  of  the  concerns  of  the  association,  it  was 
held  that  the  same  must  be  considered  to  have  been  given  as  secu- 
rity for  the  liabilities  of  the  association,  and  not  as  a  premium  note 
on  the  particular  outstanding  policy,  and  that  the  maker  was  liable 
upon  it  accordingly.^ 

It  is  held  in  Indiana,  that,  under  a  policy  in  a  mutual  fire  com- 
pany, conditioned  to  be  void  on  alienation  of  the  subject,  the 
assured  ceased  to  be  liable  for  assessments  on  his  premium  note 
after  the  alienation  of  the  insured  building.^ 

Where  the  by-laws  of  a  company  required  that  the  assignee  of 
shares  should  be  liable  for  assessments  for  losses,  and  an  assign- 
ment of  shares  expressing  such  liability  was  made  to  A,  who  had 
purchased  the  shares  for  B,  and  taken  the  assignment  of  them  in 
his  own  name  in  the  absence  of  B,  for  whom  he  intended  to  hold 
them,  and  signed  an  acknowledgment  accepting  them  "on  the 

1  Furness  v.  Gilchrist,  1  Sandf.  53.        6  M'CulIoch  r.  Indiana  Mut.  Fire 

2  Brower  v.  Appleby,  1  Sandf.  158.  Ins.  Co.,  8  Blackford's  R.  50;  Indiana 

3  Hone  V.  Folger,  1  Sandf  177.  Mut.  Fire  Ins.  Co.  v.  Chamberlain,  8 

4  Brower  v.  IIUl,  1  Sandf  629.  id.  150. 

5  Ibid. 

24* 


282  THE   PREMIUM.  [CHAP.  VI. 

conditions  named  in  the  transfer,"  A  was  held  to  be  liable  for  the 
assessments,  B's  interest  not  appearing  in  the  transfer.^ 

An  estate  insured  against  fire  in  a  mutual  company,  being  sub- 
ject to  a  lien  for  the  premiums,  having  passed  through  the  hands 
of  several  proprietors  by  descent  and  sale,  who  were  successively 
members  of  the  company,  the  premium  being  in  arrears  in  the 
mean  time,  the  successive  proprietors  are  personally  liable  for  the 
premium  accruing  during  their  respective  proprietorships.^ 

Under  a  provision  in  the  charter  of  a  mutual  fire  company,  that, 
when  the  assured  had  alienated  the  property  insured,  he  should  be 
entitled  to  receive  back  his  deposit  note  upon  the  surrender  of  his 
policy  and  payment  of  all  losses  and  expenses  accruing  previously 
to  such  surrender,  he  was  held  in  New  York  liable  to  pay  assess- 
ments on  his  note  for  losses  occurring  after  the  alienation  of  the 
property  insured,  and  prior  to  the  surrender  of  his  policy.^ 

So,  where  a  fire  policy  is  forfeited  by  an  assignment  of  it  with- 
out the  consent  of  the  insurers,  the  assured  is  liable  to  an  assess- 
ment made  on  his  premium  note  subsequently  to  the  forfeiture  of 
his  policy,  for  a  loss  that  accrued  prior  to  the  forfeiture.* 

523  a.  A  loan  on  bottomry  or  respondentia  security,  is  an  insur- 
ance of  the  hypothecated  subject  by  the  lender  against  the  risks  spe- 
cified in  the  instrument  of  hypothecation.  In  this  contract,  the  excess 
of  the  agreed  marine  interest  over  common  interest,  is  the  premium. 

The  marine  interest  may  be  stipulated  for  a  certain  number  of 
years  or  months,  but  is  usually  for  a  certain  voyage,  or  succession 
of  voyages,  or  passages.^  This  stipulation  for  marine  interest  is 
an  essential  characteristic  of  a  bottomry  or  respondentia  contract.^ 
If  the  subject  is  not  exposed  to  the  specified  risks,  marine  interest 
does  not  accrue,"'  as  in  case  of  an  inadequate  description  of  the 


1  Long  r.  Pennsylvania  Ins.  Co.,  G  ^  Boulay  Paty,  Droit  Com.,  tit.  9, 
Penn.  11.  421.  s.  3,  torn.  3,  p.  63,  ed.  1822 ;  The  ISIary 

2  Shirley  v.  Mutual  Ass.  So.,  2  llo-  Ann,  4  Notes  of  Cases,  in  Adm.  376. 
binson's  (Va.)  R.  707.  6  Leland  v.  The  Medora,  2  Woodb. 

3  Nccly  t'.  Onondago  county  Mut.  &  Minot's  11.,  C.  C.  of  U.  S.  92. 

Ins.  Co.  7  Hill,  50.  7  Boulay  Paty,  Droit  Com.  tit.  9, 

4  Smith  V.  Saratoga  Mut.  Fire  Ins.  s.  13,  torn.  3,  p.  168,  ed.  1822  ;  Marsh. 
Co.,  3  Hill,  508.  Ins.,  book  2,  c.  1,  p.  736,  2d  edition. 


CHAP.  VI.] 


THE   PREMIUM. 


283 


subject,  or  of  the  bond  being  void  from  any  cause  without  fraud  of 
the  borrower.  So  in  case  the  bond  is  good  for  only  a  part  of  the 
amount  proposed  to  be  hypothecated,  by  reason  of  a  part  only  be- 
ing put  at  risk,  the  marine  interest  is  reduced  proportionally ,i  though 
the  borrower  may  be  answerable  in  damages  by  his  failing  to  put 
at  risk  the  stipulated  amount.  So  the  rate  of  marine  interest  may 
be  reduced  by  a  court  of  admiralty  on  account  of  its  exorbitancy. 
The  risk  having  once  begun,  the  marine  interest  for  the  passage, 
voyage,  or  period  entered  upon,  becomes  due,  though  the  risk  may 
not  continue  for  the  entire  voyage  or  period.^  The  marine  inte- 
rest ceases  at  the  termination  of  the  voyage  or  period  for  which 
the  loan  is  made.^ 


1  The  Prince  George,  4  Moore's 
Appeal  Cases,  21. 

2  Boulay  Paty,  Droit  Com.,  tit.  9, 
s.  3,  torn.  3,  p.  78,  ed.  1822  ;  The 
Dante,  1  W.  Rob.  R.  427  ;  S.  C,  4 
Notes  of  Adm.  Cases,  408 ;  Marsh. 
Ins.,  book  2,  c.  4,  p.  751. 

3  Boulay  Paty,  Droit  Com.,  tit.  9, 
s.  5,  torn.  3,  p.  90,  ed.  1822.  Boulay 
Paty  (torn.  3,  p.  119,)  discusses  the 
question  whether  the  common  interest 


which  begins  to  run  as  soon  as  the 
bori'ower  is  in  default  by  non-pay- 
ment, is  confined  to  the  principal 
originally  lent,  or  upon  the  amount 
of  the  principal  and  the  marine  inte- 
rest. Mr.  Marshall  (Ins.,  book  2,  c.  4, 
p.  752,  ed.  1822,)  states  the  former 
rule,  citing  Pothier  and  Emerigon. 
Mr.  Justice  Story  adopts  the  latter. 
The  Ship  Packet,  3  Mason's  R.  255. 


CHAPTER   VII. 


REPRESENTATION    AND    CONCEALMENT. 


Sect.  1.  What  is  a  representation  or  con- 
cealment. 

2.  To  wliat  time  the  doctrine  of  re- 

presentation refers. 

3.  Eevocation  of  the  order. 

4.  Representation    or    conceahnent 

by  an  agent. 

5.  Construction  of  a  representation. 

6.  'SVliat  facts  must  in  general  be 

disclosed,  and  in  what  man- 
ner. 

7.  Species  of  property,  and  nature 

of  the  interest. 

8.  Usages  of  the  trade  need  not  be 

disclosed. 

9.  Evasion  of   foreign  commercial 

and  municipal  regulations. 
10.  Matters  of  express  stipulation  in 
the  policy. 


Sect.  11.  Matters  of  implied  warranty  or 
stipulation. 

12.  What  kinds  of  intelligence  must 

be  communicated. 

13.  Time  of  sailing  or  being  spoken. 

14.  National  character  and  belhge- 

rent  risk. 

15.  Representation  ajid  concealment 

in  insurance  against  fire. 

16.  Representation  and  concealment 

in  life  insurance. 

17.  Presumption  from  the  rate  of 

premium. 

18.  The  withdrawing,  superseding, 

or  waiver  of  a  representation. 

19.  Compliance  with  a  representa- 

tion. 

20.  Effect  of  a  concealment  or  mis- 

representation. 


SECTION    I.       WHAT    IS    A    REPRESENTATION    OR    CONCEALMENT. 

524.  A  REPRESEj^TJiTio.Y  ill  msurancc  is  the  communication  of 
a  fact,  or  the  making  of  a  statement,  hy  one  of  the  parties  to  a 
contract  of  insurance  to  the  other,  in  reference  to  a  proposal  for 
their  entering  into  the  contract,  tending  to  influence  his  estimate 
of  the  character  and  degree  of  the  risk  to  be  insured  against. 

To  constitute  a  representation,  says  Mr.  C.  J.  Marshall,  there 
should  he  an  ajjinnation  or  denial  of  some  fact,  or  an  allegation 
which  plainly  leads  the  mind  to  an  inference  of  a  fact} 


'  Livingston  r.  ALaryland  Ins.  Co.,  Richards  v.  Murdock,  1  L.  &  W.  132  ; 

7  Cranch,  53.'),  &c.;  and  sec  Murga-  10  B.  &  C.  527.     Sec  also  2  Duer, 

troyd  I".  Crawford,  3  Dall.  401 ;  N.  Y.  Mar.  Ins.,  Lcct.  14,  s.  1-8,  pp.  643  - 

Firemen's   Ins.    Co.    v.   Wclden,    12  C5C,  for  criticisms  on  the  definitions 

Johns.    513,   per   Chancellor    Kent;  of  a  representation,  and   ibid.  s.    8, 


SECT.  I.]     AVIIAT  IS  A  REPRESENTATION  OR  CONCEALMENT.  285 

525.  A  fact  or  statement  having  such  tendency  is  called  a 
MATERIAL  fact  OT  statement. 

One  having  no  such  tendency  is  called  immaterial. 

526.  A  representation  may  be  an  oral  or  ivriiten  statement  of 
the  party  or  his  agent,  or  the  exhibition  of  a  letter  or  a  news- 
paper, or  by  other  mode  of  communication. 

527.  So  a  representation  may  be  by  mere  implication  by  the 
policy  itself,  by  a  separate  writing,  or  by  words  spolcen.^ 

Thus,  in  insurance  from  Genoa  to  Dublin,  "the  adventure  to 
begin  from  the  loading  to  equip  for  the  voyage,"  was  held  by  Lord 
Mansfield  and  his  associates  to  imply,  if  it  did  not  literally  stipulate, 
that  the  cargo  was  to  be  loaded  at  Genoa,  and  the  policy  was  de- 
feated by  its  being  loaded  at  Leghorn,  which  at  the  time  materially 
enhanced  the  risk.^ 

So  a  stipulation  "  to  return  five  per  cent,  for  convoy,"  was  con- 
sidered by  Lord  Eldon  to  imply  a  probability  of  convoy.^ 

So  a  recital  in  the  policy  that  the  vessel  "was  expected  to  be 
loaded  between  the  13th  and  20lh  of  September,"  was  held  to  be 
an  implied  representation  that  the  assured  had  no  knowledge  of 
her  being  loaded  before  the  ISth."^ 

Insurance  of  freight  of  an  American  vessel  from  the  Swedish 
island  of  "St.  Thomas,"  to  "Havana,"  was  ruled  by  Mr.  Jus- 
tice Cranch  not  to  be  an  implied  representation  that  the  cargo 
was  taken  aboard  at  St.  Thomas,  and  it  was  ruled  that  the  policy 
was  not  defeated  by  the  fact  of  the  cargo  having  been  put  aboard 
at  Buenos  Ayres,  then  in  revolt  and  at  war  with  Spain.^ 

A  party  insured  against  the  dishonesty  of  a  clerk,  had,  in  reply 


p.  256,  for  Mr.  Duer's  definition.    See  vel  v.  United  Ins.  Co.,  2  Johns.  Cas. 

also  1  Arnould's  Mar.  Ins.,  part  2,  c.  1,  451,  and  same  plaintiff  v.  Church,  2 

s.  2,  p.  489,  for  a  definition.  id.  173,  n. ;  Steel  v.  Lacy,  3  Taunt. 

1  Before  Lord  Mansfield's  time  re-  285 ;  Kemble  v.  Bowne,  1  Caines's  R. 
presentations  were  usually  oral.  Paw-  75;  Kirby  v.  Smith,  1  B.  &  Aid.  G72. 
son  V.  Watson,  Cowp.  785.  4  Stewart  v.  Morrison,  Millar's  Ins. 

2  Hodgson  V.  Richardson,  1  W.  Bl.  59. 

4G3;  3  Burr.  1477.  5  Simmies    v.   Marine   Ins.    Co.,    2 

3Reid  I'.  Harvey,  4  Dow's  R.  97.  Cranch,  C.  C.  R.  618. 
Sec  also  infra,  No.  550 ;  Vandenheu- 


286  REPRESENTATION   AND    CONCEALMENT.  [ciIAP.  VII. 

to  the  written  inquiry  as  to  "the  checks  which  would  be  used  to 
secure  the  accuracy  of  the  clerk's  accounts,  and  how  often  they 
would  be  closed,"  answered  in  writins:  that  the  accounts  were 
"examined  every  fortnight."  It  was  stipulated  that  any  fraudu- 
lent statement  should  render  the  policy  void.  Losses  had  accrued 
by  the  clerk's  embezzlements  at  divers  times,  and  the  underwriters 
objected  to  the  later  ones  on  the  ground  of  a  non-compliance  with 
the  warranty,  as  they  alleged  it  to  be,  that  the  accounts  should  be 
examined  periodically.  Pollock,  C.  J.,  of  the  English  Exchequer 
Chamber,  said  the  statement  was  "a  declaration  of  the  course  the 
office  intended  to  pursue,  and  if  made  bona  fide  it  did  not  preju- 
dice the  assured's  right  to  recover."  ^  This  seems,  however,  to  be 
a  promissory  representation.^ 

In  a  case  before  the  Supreme  Court  of  Connecticut  the  policy 
on  a  factory  provided  that  "  the  survey  and  description  should  be 
part  of  the  policy  and  a  warranty."  The  court  treated  the  state- 
ments in  the  application  respecting  the  watch  kept  in  the  building, 
and  hours  of  working,  as  representations.^ 

A  refusal  to  warrant  property  to  be  neutral  is  considered  to  be 
an  implied  representation  that  it  may  be  belligerent,'*  and  that  the 
insurers  were  to  take  that  risk. 

The  questions  whether,  and  in  what  cases,  written  statements 
or  implications  in  the  policy  or  in  documents  therein  referred  to, 
are  representations  or  warranties  or  mere  descriptions  of  the  sub- 
ject, and  to  what  effect  and  how  construed,  and  whether  a  substan- 
tial compliance  is  sufficient,  or  a  strict  one  is  necessary,  are  con- 
sidered under  other  heads. ^ 

528.  So  where  the  first  insurer,  having  a  secret  understanding 


1  Benham  v.  The  United  Guaranty  3  Glendale  Woollen  Co.  v.  Protec- 
and  Life  Ins.  Co.,  Eng.  Law  &  Eq.  R.  tion  Lis.  Co.,  21  Conn.  R.  19. 
(Press  of  Little,  Brown  &  Co.)  ;  S.  C,  4  So  stated  by  Kent,  C.  J.,  Seton  v. 
Eng.  Law  Jurist,  (n.  s.)  Low,  1  Johns.  Cas.  1 ,  referring  pro- 

2  See  infra,  No.  939,  and  the  case  bably  to   Nonnen   v.   Kettlewell,  16 
appears  also  to  have  been  open  to  the  East,  176. 

defence  that  tlie  later  embezzlements  ^  Supra,  No.  430  ;  infra,  No.  553, 

occurred    tlirough   the  negligence  of  569,575,592,000,640,041,652,673, 

the  assured.  074,871,872,892. 


SECT.  I.]     WHAT  IS  A  REPRESENTATION  OR  CONCEALMENT.  287 

with  the  assured,  that  he  is  not  to  be  bound  by  his  subscription, 
is  merely  a  "decoy,"  this  deception  is  equivalent  to  an  express 
misrepresentation  to  the  other  insurers,  who  will  accordingly  not 
be  bound  by  their  subscriptions,^  such  exhibit  being  an  implied 
representation  that  the  first  subscription  is  bona,  fide. 

529.  A  misreprcseniation  is  a  false  rcyreseniation  of  a  mate- 
rial fact,  by  one  of  the  parties  to  the  other,  tending  directly  to 
induce  the  other  to  enter  into  the  contract,  or  to  do  so  on  terms 
less  favorable  to  himself,  when  he  otherwise  might  not  do  so,  or 
might  demand  terms  more  favorable  to  himself^ 

530.  Though  the  fact  misrepresented  by  the  assured  is  on  a 
matter  concerning  which  he  is  not  required  to  make  any  represent- 
ation, still,  if  it  tends_  directly  to  induce  the  underwriter  to  sub- 
scribe to  the  policy,  when  he  otherwise  might  not  do  so,  or  to 
induce  him  to  underwrite  at  a  lower  premium  than  he  otherwise 
might  do,  it  is  a  misrepresentation  : 

As  where  the  assured  in  Edinburgh  represented  that  eight  gui- 
neas was  the  highest  premium  he  had  paid  to  London  underwriters 
on  the  same  risk,  when  he  had,  in  fact,  paid  fifteen.^ 

531.  Concealment  in  insurance  is  ivhere,  in  reference  to  a 
negotiation  therefor,  one  party  suppresses,  or  neglects  to  commu- 
nicate to  the  other,  a  material  fact,  which,  if  communicated,  would 
tend  directly  to  prevent  the  other  from  entering  into  the  contract, 
or  to  induce  him  to  demand  terms  more  favorable  to  himself ;  and 
which  is  known,  or  presumed  to  be  so,  to  the  party  not  disclosing 
it,  and  is  not  known,  or  presumed  to  be  so,  to  the  other. 

532.  It  is  of  no  importance  that  the  circumstances  misrepre- 
sented or  concealed,  or  to  which  the  misrepresentation  or  conceal- 
ment relates,  prove  actually  not  to  affect  the  risk. 

533.  The  question  of  misrepresentation  or  concealment  usually 
has  reference  to  the  assured,  for  the  reason   that  the  facts  are 


1  Wittingham  v.  Thornborough,  2  v.  Mather,  1  T.  K.  12 ;  Curell  v.  MIs- 
Vern.  20G  ;  Prec.  in  Chan.  20 ;  Wil-  sissippi  Mar.  &  Fire  Ins.  Co.,  9  La.  R. 
son  I".  Ducket,  3  Burr.  1361.  163. 

2  Thompson  v.  Buchanan,  4  Bro.  3  Sibbald  v.  Hill,  2  Dow's  P.  C.  263, 
Pari.  Cas.  482;  Mil.  79;  Fitzherbert  differently  decided  in  Scotland. 


288  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  VII. 

usually  known  to  him,  and  the  insurance  is  made  mostly  or  wholly 
upon  his  statements.  The  doctrine  is,  liowever,  equally  applica- 
ble to  the  insurer  : 

As  where  an  underwriter  insures  a  vessel  which  he  knows  to 
have  arrived.^ 

534.  The  j^rincijyle  iipon  which  the  doctrine  on  this  subject 
rests,  is  common  to  insurance  and  other  contracts,  namely,  that 
where  a  party  is  led  into  a  contract  by  misapprehension,  and 
through  error,  occasioned  by  fraud  or  a  culpable  act  or  neglect  for 
which  the  other  is  responsible,  he  is  equitably  entitled  to  be  dis- 
charged from  it.  The  doctrine  has,  however,  a  more  extensive 
application  in  insurance  than  in  most  other  contracts,  on  account 
of  the  fact  just  mentioned,  that  it  is  made  upon  the  statements  of 
the  assured,  who  is,  therefore,  under  stringent  obligation  to  make 
a  fair  disclosure  of  the  circumstances.  Hence  insurance  is  charac- 
terized by  some  of  the  oldest  writers  upon  it  as  preeminently  a 
contract  of  good  fiiith,  —  "  uberrimse  fidei." - 

535.  The  doctrines  of  misrepresentation  and  concealment  are 
common  to  marine,  fire,  and  life  jJolicies. 

536.  A  representation  to  an  agent  of  the  underwriters  for 
receiving  applications,  will  be  such  to  the  underwriters  :  ^  So  to 
any  authorized  officer  of  the  company.^ 

537.  The  effect  of  a  misrepresentation  or  concealment,  in  ren- 
dering the  contract  inoperative,  will  be  particularly  considered  in 
a  subsequent  section, 

It  is  sufficient  to  state  here,  that  generally,  if  either  party, 
whether  purposely  or  through  negligence,  mistake,  inadvertence, 
or  oversight,  misrepresents  a  fact  which  he  is  bound  to  represent 
truly,  or  omits  to  communicate  a  fact  which  he  is  bound  to  com- 
municate, the  other  is  wholly  or  partially  exonerated  from  the 
contract.^ 


'  Carter  v.  Boelim,  3  Burr.  1905;  3  ;McE wen  v.  Montgomery  Mut.  Ins. 

DufTi-ll  r.  Wilson,  1  Camp.  401.    Sec  Co.,  5  Hill,  101. 

also  Astley  v.  Kay,  2  Taunt.  214.  ^  Potter  v.  Ontario  &  L.  Ins.  Co., 

2  McLanahan  ?'.  Universal  Ins.  Co.,  5  Hill,  147. 

1  Petcrs'.s  Suji.  Ct.  11.  170.  5  Curson  v.  Smith,  and  Cole  v.  Ma- 


SECT.  I.]    WHAT  IS  A  REPRESENTATION  OR  CONCEALMENT.  289 

The  effect  of  a  misrepresentation  or  concealment,  i?i  discharg- 
ing the  underwriters f  does  not  seem  to  he  merely  on  the  ground  oj 
fraud,  as  has  been  usually  laid  down  by  writers  on  insurance,^ 
hut  also  on  the  ground  of  a  condition  implied  by  the  fact  of  enter- 
ing into  the  contract,  that  there  is  no  misrepresentation  or  conceal- 
ment.- 

Mr.  Duer^  criticizes  the  phraseology  of  the  books,  in  putting 
the  effect  of  a  misrepresentation  or  concealment  upon  the  contract 
entirely  upon  the  ground  of  "fraud."  Mr.  Arnould  "*  adheres  to 
this  application  of  that  term,  for  the  sake  of  consistency  with  the 
general  legal  doctrine,  that  what  passes  between  the  parties  pre- 
liminary to  a  contract  is  not  a  part  of  it,  and  should  not  be  imported 
into  it.  And  since  a  representation  through  mistake  or  inadvert- 
ence has  the  same  effect,  in  reference  to  the  underwriter,  as  an 
intentional  and  literally  fraudulent  misrepresentation  or  conceal- 
ment,—  namely,  it  induces  him  to  enter  into  a  contract  which  he 
would  otherwise  have  declined,  or  to  take  a  less  premium  than  he 
would  otherwise  have  demanded,  —  he  deems  it  to  be  excusable 
to  apply  the  term  "  fraud,"  and  thus  bring  the  doctrine  on  this 
subject  nominally  within  the  acknowledged  general  principle  appli- 
cable to  other  contracts. 

But  I  cannot  think  that  this  anomalous  use  of  the  term  is  justi- 
fiable on  this  ground,  since  ambiguous  phraseology  is  not  to  be 
tolerated  in  any  science,  and  least  of  all  in  that  of  law,  where  it 
can  possibly  be  avoided,  as  it  may  easily  be  in  this  case,  by  stat- 
ing the  practical  doctrine  in  direct  terms  ;  namely,  that  it  is  an 
implied  condition  of  the  contract  of  insurance,  that  it  is  free  from 
misrepresentation  or  concealment,  whether  fraudulent  or  through 


rine  Ins.  Co.,  Wharton's  Dig.  tit.  In-  Annesly,  124  ;  Evans,  58,  64  ;  and  see 

surance,  No.  28,  p.  320  ;  Dennison  r.  2  Duer,  Ins.  747,  &c.,  where  this  point 

Thomaston  Mut.  Ins.  Co.,  20  Maine  is  learnedly  and  elaborately  investi- 

R.  125 ;  Neptune  Ins.  Co.  v,  Robinson,  gated. 

1 1  Gill  and  Johns.  256  ;  and  see  cases  2  gge  chap.  8,  Implied  "Warranties, 

passim.  3  Marine  Ins.,  Vol.  II.  p.  647,  &c. 

>  Marsh.  Ins.,  book  1,  c.  9,  s.  1  ;  4  Vol.  I.  pp.  495-498,  part  2,  c.  1, 

Park,  8th  ed.,  4011;   Hughes,  345;  s.  2,  No.  187. 
VOL.  I.                          25 


290  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  VII. 

mistake.  This  implied  condition  involves  no  more  difficulty  than 
that  of  seaworthiness,  or  any  other  implied  warranty.  And  if 
insurance  is  thereby  distinguished  from  other  contracts,  which  I 
apprehend  it  is  not  entirely,  this  peculiarity  is  not,  that  I  can  per- 
ceive, of  great  weight,  certainly  not  enough  to  excuse  an  anoma- 
lous application  of  the  technical  terms  "fraud"  and  "fraudulent" 
to  many  of  the  misrepresentations  and  concealments  whereby  a 
policy  of  insurance  has  been  held  to  be  defeated. 

The  doctrine  on  the  subject  is  so  evidently  one  of  implied  stipu- 
lation, that  Mr.  Arnould,  notwithstanding  his  objection,  himself 
puts  it  upon  that  ground.  Speaking  of  promissory  representations, 
he  says,  "They  are  positive  engagements  that  certain  material 
facts  shall,  or  will,  exist,"  and  that  they  "involve  a  stipulation 
that,  unless  facts  take  place  substantially  corresponding  with  those 
specified,  the  underwriter  shall  not  be  liable  on  the  policy."  ^ 
How  such  an  "engagement"  or  "stipulation,"  unless  it  is  implied 
in  the  policy  ?  And  if  it  is,  then  the  forfeiture  of  the  insurance 
by  misrepresentation  or  concealment  is  a  forfeiture  by  a  breach  of 
a  condition  of  the  contract.  So  it  seems  to  have  been  considered 
by  Chancellor  Kent.^ 

538.  Intelligence  and  rumored  facts  are  equally  material  to  he 
represented^  and  a  suppression  or  misrepresentation  of  them  will 
equally  defeat  the  contract,  though  it  turns  out  that  they  tvere 
erroneous,  and  that  there  did  not  really  exist  any  circumstance 
tending  directly  to  determine  the  insurer  to  decline  the  risJc  or 
demand  a  higher  premium.^ 

If  the  assured  states  that  "according  to  the  account  he  has  re- 
ceived a  life  proposed  to  be  insured  is  a  good  one,"  the  policy  will 
not  be  defeated,  though  it  is  not  a  good  life  if  he  has  received  such 
an  account  and  has  no  information  or  knowledge  to  the  contrary ; 
but  if  he  has  received  no  such  account  the  policy  is  void.* 

539.  Neither  an  immaterial  misstatement  hy  a  party,  unless 
made  iv,  reply  to  a  specific  inquiry,  nor  a  concealment  of  an  im- 


i  Arnould's  Ins.  507.  4  Stackpool  v.  Slmond,  Marsh.  Ins  , 

2  3  Coram.,  5th  cd.  282.  book  3,  c.  2,  p.  772,  2d  ed. 

3  Lynch  v.  Hamilton,  3  Taunt.  37. 


SECT.  I.]    WHAT  IS  A  REPRESENTATION  OR  CONCEALMENT.  291 

material  fact,  will  impair  the  contract,  unless  it  is  intended  fraud- 
ulently, and  influences  the  other  party. ^ 

540.  Though  an  immaterial  misrepresentation  or  concealment 
is  fraudulently  intended  by  one  party,  it  will  not  impair  the  con- 
tract, if  it  has  no  influence  upon  the  other,^  though  in  such  case 
the  presumption  prima  facie  may  be  that  it  has  in  fact,  as  it  is  in- 
tended to  have,  an  influence  in  inducing  the  other  party  to  enter 
into  the  contract,  the  presumption  cannot  be  conclusive,  and  pre- 
clude evidence  and  inference  to  the  contrary. 

541.  If  an  underwriter  is  led  into  the  contract  by  false  state- 
ments and  pretences  of  the  assured  or  his  agent,  fraudulently  made, 
with  intent  to  deceive  and  actually  deceiving  him,  he  will  not  be 
bound  by  the  contract,  whether  the  pretences  have  any  direct  ten- 
dency to  induce  too  favorable  an  estimate  of  the  risk  or  not. 

The  question  in  such  case  is  not  the  materiality  or  immateriality 
of  the  fact  represented  in  regard  to  the  degree  of  risk  and  proper 
rate  of  premium,  but  its  effect  in  fraudulent  deception  in  any  re- 
spect.2  This  is  a  general  principle  of  law  applicable  to  insurance 
and  other  contracts,  in  reference  to  which  the  respective  characters 
and  capacities  of  the  parties,  and  their  relative  position,  are  to  be 
taken  into  consideration. 

542.  A  misrepresentation  or  concealment  by  one  party  of  a 
fact  specifically  inquired  about  by  the  other,  though  not  material, 
will  have  the  same  effect  in  exonerating  the  latter  from  the  con- 
tract, as  if  the  fact  had  been  material,  since  by  making  such 
inquiry  he  implies  that  he  considers  it  to  be  so. 


1  Waldon  V.  N.  Y.  Firemen's  Ins.  Co.  v.  Adams,  23  Pick.  256 ;  Baker 
Co.,  12  Johns.  128  ;  Snyder  i\  Farm-  v.  Carey,  19  Pick.  496. 

ers'  Ins.  and  Loan  Co.,  13  Wend.  92;        3  Marsh.  452  ;  Park,  8th  ed.  405  ; 

Farmers'  Ins.  Co.,  i'.  Snyder,  16  TVend.  3  Kent's  Comm.,  5th  ed.  283  ;  2  Duer, 

481 ;  Coulon  v.  Bowne,  1  Caines,  288  ;  Mar.  Ins.  685  ;  1  Arnould's  Mar.  Ins. 

Lexington  Ins.  Co.  v.  Paver,  16  Ohio  500.    The  proposition  is  stated  in  a 

R.  324.  different  form  by  the  authors  here 

2  See  Morgan  v.  Bliss,  2  Mass.  R.  referred  to,  but  the  doctrine  stated  in 
111;  Otis  V.  Raymond,  3  Conn.  R.  the  text  is  what  I  understand  to  be 
413;  Anderson  v.  Burnett,  5   How.  intended. 

Miss.  R.  165;  Salem  India  Rubber 


292  REPRESENTATION   AND    CONCEALMENT.         [CHAP.  VII. 

In  all  the  jurisprudence  this  distinction  is  recognized.  It  is  par- 
ticularly applicable  to  written  answers  to  written  inquiries,  referred 
to  in  the  policy.  The  rule  is  so  because  a  party,  in  making  a 
contract,  has  a  right  to  the  advantage  of  his  own  judgment  of 
what  is  material,  and  if,  by  making  specific  inquiry,  he  implies 
that  he  considers  a  fact  to  be  so,  the  other  party  is  bound  by  it  as 
such.i 

Thus  where,  in  a  fire  insurance,  it  is  inquired  what  buildings 
are  within  a  certain  distance  from  the  one  proposed,  the  applicant 
is  bound  substantially  according  to  the  fact,  and  is  not  at  liberty 
to  dispute  its  materiality.^ 

543.  j4.  misrepresentation  or  concealment  by  the  agent  for 
effecting  the  insurance  ivill  defeat  it,  though  not  known  to  the 
assured,  and  though  without  any  fraudulent  intent  on  the  part  of 
the  agent,  to  the  same  effect  as  if  made  by  the  assured  himself.^ 

544.  In  general  a  suhstantial  compliance  with  a  representation 
is  sufficient.^  Where  a  written  representation  is  expressly  refer- 
red to  in  the  policy,  so  as  to  be  made  a  part  of  it,  and  purports 
to  be  a  stipulation,  it  must  be  complied  with  according  to  its  pur- 
port.^ 

Promissory  representations  of  material  facts  so  made  and  refer- 
red to  in  the  policy,  usually  have  the  effect  of  express  warranties, 
and  come  under  that  head. 

545.  Though  it  is  not  requisite  that  a  representation  should 
be  in  toriting,  it  is  usually  so  made,  or  is  reduced  to  writing  by 
the  consent  of  the  parties  at  the  time  of  its  being  made,  and  it  is 
for  the  mutual  benefit  of  the  parties  that  it  should  be  in  writing, 
as  it  induces  caution  and  deliberation,  and  saves  the  parties  from 
the  forget  fulness  and  mistakes  of  witnesses,  and  the  errors  of  bro- 
kers and  clerks.^ 


1  Dennison  v.  Thoraaston  Mut.  Fire  ^  Vide  infra,  s.  2. 

Ins.  Co.,  20  Maine  R.  125.  5  Houghton  v.  Manufacturei-s'  Mut. 

2  Burrilt  v.  Saratoga  county  Mut.  Fire  Ins.  Co.,  8  Mete.  114;  and  see 
Fire  In.s.  Co.,  5  Hill,  188.  section  below,  and  c.  1,  s.  8,  No.  70. 

3  Carpenter  v.  American  Ins.  Co.,  6  Sec  Pawson  v.  Watson,  Cowper, 
1  Story's  C.  C.  11.  57  ;  Fitzherbert  v.  785. 

Mather,  1   T.  II.  1 2 ;   and  sec  cases 
generally. 


SECT.  I.]    WHAT  IS  A  REPRESENTATION  OR  CONCEALMENT.  293 

546.  A  material  misstatement  by  the  assured  through  miscon- 
struction of  his  information,  is  a  misrepresentation ;  and  the  un- 
wittingly omitting  to  state  a  material  fact  is  a  concealment. 

An  insurance  was  made  in  England  on  a  vessel  from  New  York 
to  Philadelphia,  and  from  a  misconstruction  of  the  captain's  letter, 
as  was  contended  in  behalf  of  the  assured,  it  was  represented  that 
the  vessel  "was  seen  safe  in  the  Delaware  on  the  11th  of  Decem- 
ber," when  she  had  been  lost  on  the  9th,  by  running  upon  a  che- 
vaux-de-frise.  Lord  Mansfield  said,  "A  representation  must  be 
true,  and  if  the  assured  represents  facts  without  knowing  the  truth, 
he  takes  the  risk  upon  himself."  ^ 

An  insurance  from  Newport  in  Rhode  Island,  to  Passage,  in 
Spain,  was  made  upon  goods  which  had  been  brought  from  La- 
guira,  without  being  unloaded  in  the  United  States,  so  as  to  consti- 
tute an  importation,  and  this  circumstance  was  not  made  known  to 
the  underwriters.  The  goods,  being  captured,  were  condemned 
on  the  ground  that  it  was  an  entire  voyage  from  a  Spanish  colony 
to  Spain.  Mr.  Justice  Washington  said,  "The  omission  to  com- 
municate the  circumstance  of  the  not  unloading  the  cargo,  if  mate- 
rial to  the  risk,  whether  by  fraud  or  accident,  vacated  the  policy. 
The  underwriter  takes  the  risk,  under  the  condition  that  he  shall 
be  informed  as  to  all  facts  within  the  private  knowledge  of  the 
assured."  ^ 

547.  A  representation  being  once  made  in  reference  to  a  pro- 
posed insurance,  continues  to  be  binding  unless  it  is  subsequently 
revoJced  or  modified  before  the  policy  is  executed.^ 

548.  If  the  assured  purposely  and  fraudulently  neglects  to 
learn  material  facts,  it  is  a  concealment  of  the  same^ 

1  Macdowall  v.  Fraser,  Doug.  247,  3  Edwards  v.  Footner,  1  Camp.  530, 
See  also  Fiske  v.  N.  E.  Mar.  Ins.  Co.,  where  Lord  Ellenborough  comments 
15  Pick.  310 ;  Hazard's  Adm'r  v.i^.  E.  upon  the  previous  case  of  Dawson  i\ 
Mar.  Ins.  Co.,  8  Pcters's  S.  C.  R.  557;  Atty,  7  East,  367,  in  which  he  says 
N.  Y.  Bowery  Fire  Ins.  Co.  v.  N.  Y.  the  first  representation  was  afterwards 
Ins.Co.,  17  Wend.  359;  Shirley  t'.Wil-  qualified  and  corrected.  See  also 
kinson,  1  Doug.  306,  n. ;  3  Doug.  41.  Marsh.  Ins.  352. 

2  Kohne  v.  Ins.  Co.  of  North  Ame-  ■*  Biays  v.  Union  Ins.  Co.,  1  Wash, 
rica,  1  Wash.  R.  93 ;  S.  C,  1  Wash.  C.  C.  R.  506. 

158. 

25* 


294  REPRESENTATION   AND   CONCEALMENT.         [CHAP.  VII. 

549.  Whether  the  master^s  fraudulently  withholding  informa- 
tion of  material  facts  from  the  assured  or  broker,  for  the  purpose 
of  allowing  opportunity  to  effect  insurance,  is  a  concealment  impu- 
table to  the  assured  ? 

In  case  of  a  policy  in  England  on  oats  from  Hartland  in  Devon- 
shire to  Portsmouth,  the  person  who  shipped  the  oats  wrote  on  the 
same  day  to  the  agent  of  the  assured  in  Portsmouth,  advising  him 
of  the  shipment,  and  that  the  ship  had  sailed,  but  he  was  afraid 
that  the  wind  would  force  her  back.  He  wrote  on  the  same  day 
to  the  same  effect  to  another  agent  of  the  assured  in  London,  say- 
ing, "I  wish  the  whole  were  safe  to  hand.  The  weather  appears 
stormy."  Before  the  mail  left  Hartland  with  the  letters,  the  writer 
learned,  in  time  to  have  sent  advice  by  the  same  post,  that  the 
ship  was  wrecked  ;  but  he  sent  no  advice  of  the  shipwreck.  On 
the  receipt  of  his  letters  in  London,  insurance  was  made,  the  let- 
ters being  submitted  to  the  underwriters.  Lord  Mansfield  and  his 
associates  adjudged  the  policy  to  be  void  ;  ^  thus  imputing  the 
concealment  to  the  assured. 

The  same  doctrine  is  recognized  by  Lord  Ellenborough  and  his 
associates.  A  ship  was  insured  in  London  "at  and  from  Jamaica," 
where  she  lay  at  the  date  of  the  last  intelligence  from  the  captain, 
who  omitted  to  mention,  in  his  letter  to  the  owner,  that  she  had 
struck  upon  a  rock  in  Machineal  and  been  got  off,  without  appear- 
ing to  have  sustained  material  damage.  This  circumstance  was 
not  known  to  the  assured  when  he  effected  the  policy,  and  accord- 
ingly was  not  communicated  to  the  insurers.  There  does  not 
appear  to  have  been  any  fraudulent  purpose  on  the  part  of  the 
captain.  Lord  Ellenborough  remarked,  in  giving  the  opinion  of 
the  court  against  the  claim  for  a  loss,  that  "what  is  known  to  the 
agent  is  impliedly  known  to  the  principal." - 

A  parallel  case  has  been  decided  in  favor  of  the  validity  of  the 
policy  by  the  Circuit  and  Supreme  Courts  of  the  United  States. 
On  the  9th  of  February,  a  policy  was  made  in  Boston,  on  a  sloop 
and  goods  on  board,  lost  or  not  lost,  beginning  the  risk  on  the 
12lh  of  the  preceding  January,  the  sloop  having  been  wrecked  and 

>  Fitzbcrbcrt  v.  Mather,  1  T.  R.  12.     2  Gladstone  v.  King,  1  M.  &  S.  35. 


SECT.  I.]     WHAT  IS  A  REPRESENTATION  OR  CONCEALMENT. 


295 


totally  lost  on  Cape  Hatteras  on  the  19th  of  January.  The  mas- 
ter had  in  the  mean  time  purposely  neglected  to  advise  his  owner, 
at  Newport,  of  the  loss,  and  taken  measures  to  prevent  information 
from  reaching  him  through  other  channels,  for  the  express  purpose 
of  giving  him  an  opportunity  to  make  insurance,  as  he  did,  with- 
out having  information  of  the  loss.  Judge  Story,  in  the  Circuit 
Court,  assumed  that  the  neglect  of  the  master  to  give  information 
was  "wilful,  and  with  a  fraudulent  design  to  enable  the  owner  to 
make  insurance  after  the  total  loss,"  and  that  "it  was  the  duty  of 
the  master  to  give  information  of  the  loss,"  '  and  ruled  in  favor  of 
the  claim  for  the  loss. 

Mr.  Justice  Thompson,  giving  the  opinion  of  the  Supreme 
Court,  took  the  positions  that,  in  order  to  defeat  the  policy,  the 
concealment  must  be  by  the  assured  or  some  agent  of  his,  whose 
agency  had  some  connection  with  the  business  of  procuring  the 
insurance,  and  that  as  the  master,  as  such,  had  no  such  agency, 
his  concealment  could  not  be  imputed  to  the  owner.  He  further 
put  the  decision  upon  the  ground,  that,  if  the  master  was  agent  of 
either  party,  he  was  such  of  the  underwriters,  after  a  total  loss  for 
which  abandonment  had  been  made,  as  it  had  been  in  this  case.^ 

Upon  this  last  ground  the  underwriters  will  be  answerable  if  the 
loss  admits  of  abandonment,  and  not  so  if  it  is  a  partial  loss,  which 
is  anomalous  and  clearly  contradictory  and  inadmissible.  As  to 
the  other  ground,  that  the  acts  of  the  master  in  relation  to  effect- 
ing insurance  are  not  imputable  to  the  owner,  Mr.  Duer^  remarks, 
that,  if  the  master's  fraud  is  to  affect  one  of  two  parties,  it  ought 
to  be  the  one  who  trusted  him,  namely,  the  owner. 

But  it  is  not  merely  a  case  where  one  of  two  parties  must  be 
prejudiced  by  the  fraud  of  a  third.  The  real  question  is,  whether 
one  party  shall  be  defrauded  and  the  other  shall  be  entitled  to  the 
proceeds  of  the  fraud,  for  the  assured  could  not  suffer  by  the  mas- 
ter doing  his  duty  in  communicating  information  of  the  loss  ;  he 


1  Ruggles  V.  General  Interest  Ins.        3  Marine  Ins.,  Lect.  13,  s.  27,  &c., 
Co.,  4  Mason,  74.  Vol.  II.  p.  420,  &c. 

2  General  Interest  Ins.  Co.  v.  Kug- 
gles,  12  Wheat.  408. 


296  REPRESENTATION   AND   CONCEALMENT.         [CHAP.  YII. 

could  only,  at  the  most,  be  prevented  from  profiting  by  the  mas- 
ter's fraud  in  concealing  it.  It  is  as  if  two  by-standers  bet  upon  a 
player  who  is  proved  to  have  cheated. 

The  contract  is  made  under  a  misapprehension  of  both  parties, 
namely,  that  a  disaster  at  so  short  a  distance,  where  communica- 
tion is  so  frequent,  must  have  been  heard  of  within  twenty-one 
days. 

Again,  there  is  no  difference  in  principle  between  this  case, 
where  the  master  fraudulently  conceals  a  fact,  and  one  in  which 
he  should  fraudulently  state  a  fact,  for  the  express  purpose  of  ena- 
bling the  owner  to  insure.  Suppose,  after  a  total  loss,  the  master 
should  write  to  his  owner  that  he  is  pursuing  the  voyage  prosper- 
ously, one  does  not  easily  persuade  himself  that  a  policy  made 
under  such  a  fraudulent  imposition  can  be  valid. 

I  accordingly  cannot  but  conclude,  that  a  policy  made,  as  the 
case  supposes,  under  an  essential  misunderstanding  by  both  of  the 
parties,  into  ivhich  they  are  purposely  and  fraudulently  led  by  a 
third,  whether  he  be  agent  of  one  or  both,  or  neither,  is  void. 

550.  A  representation  is  construed  according  to  the  fair  and 
obvious  import  of  ivords,  and  is  equivalent  to  an  express  state- 
ment of  all  the  inferences  naturally  and  necessarily  arising  from 
it,^ 

A  representation  by  a  resident  in  a  neutral  country,  that  the 
goods  are  his  own,  has  been  held  to  be  a  representation  that  they 
are  neutral   property ,2  and  equivalent  to  a  warranty  of  their  being 

S0.3 

A  representation  that  the  ship  is  American  is  in  effect  a  repre- 
sentation that  it  will  be  documented  as  such.'* 

It  being  stated  by  the  broker  to  the  underwriter  that  the  ship 
insured  was  at  Guadaloupe  on  the  28th  of  July,  when  the  risk  was 
to  commence,  the  court  said,  "When  it  is  stated  that  she  was  at 
Guadaloupe  on  a  certain  day,  it  must  mean  that  she  was  there  in 


1  Per  Marshall,  C.  J.,  Livingston  i-.  3  Vandenheuvel  v.  Church,  2  Johns. 
Maryland  Ins.  Co.,  7  Cranch,  50G.  Cas.  127;  3  id.  486. 

2  Vandciihcuvcl  v.  United  Ins.  Co.,  *  Steel  v.  Lacy,  3  Taunt.  285. 
2  Johns.  Cas.  401. 


SECT.  I.]     WHAT  IS  A  REPRESENTATION  OR  CONCEALMENT.  297 

safety,  and  that  no  preceding  accident  was  to  be  made  good  by 
the  insurers."  ^ 

Mr.  Justice  Bayley,  speaking  of  a  representation  that  the  ship 
was  "  at  Elsineur  on  the  26th  of  July,  all  well,"  said,  *•  The  natural 
conclusion  would  be  that  she  was  left  there  well  at  that  time  ;  " 
and  this  was  the  construction  of  the  representation  adopted  by  the 
court.  In  this  sense  it  was  false,  for  the  vessel  had  sailed  from 
that  port  on  the  26lh  of  July,  six  hours  before  the  assured  himself 
had  sailed  from  the  same  port  in  another  vessel,  which  had  expe- 
rienced rough  weather  and  had  a  long  passage.'^ 

So  a  representation  that  the  vessel  "on  the  2d  of  October  was 
on  the  coast  of  Africa,"  authorized  the  construction  that  it  was 
then  left  there,  and,  as  the  assured  had  intelligence  that  she  sailed 
on  that  day,  the  insurers  were  discharged  on  the  ground  of  mis- 
representation.^ 

Where  a  policy  was  at  and  from  Saffi,  on  the  coast  of  Africa, 
to  Lisbon,  the  assured  communicated  to  the  underwriters  intelli- 
gence of  the  vessel  having  arrived  at  Madeira,  and  this  was  held 
to  be  notice  to  them  that  the  commencement  of  the  risk  was  to  be 
postponed  until  she  could  arrive  at  SafR.'* 

The  applicants  for  a  policy  indorsed  on  their  written  application 
as  follows:  "Although  our  advices  give  us  no  reason  to  believe 
there  will  be  any  articles  contraband  of  war  on  board,  still,  as  we 
wish  to  be  covered  against  all  possible  risk,  we  request  your  con- 
sideration of  the  application  including  articles  contraband  of  war." 
This  was  construed  by  the  Maryland  Court  of  Appeals  not  to  be 
an  implied  representation  of  neutrality,  as  there  was  no  assertion 
of  any  fact.  It  was  implied  merely  that  the  vessel  might  be 
American,  and  might  possibly  have  contraband  articles  on  board. 
The  plain  import  was,  not  that  they  assumed  additional  responsi- 
bility or  made  any  new  assurances  or  guarantees,  but  merely  wished 
to  obtain  more  full  indemnity.^ 

1  Kemble  v.  Bowne,  1  Caines,  75.  ■*  Driscol  r.  Passmore,  1  B.  &  P.  200. 

2  Kirby  V.  Smith,  1  B.  &  A.  672.  5  Maryland   Ins.  Co.  and  Phccnix 

3  Radfliff  V.  Shoolbred,  1  Park,  8th  Ins.  Co.  v.  Bathurst,  5  Gill  &  Johns, 
ed.  413  ;  Marsh.  468 ;  recited  2  Duer,  159. 

507. 


298  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  VII. 

551.  The  statement  of  an  expectation,  opinion,  or  helief,  is  not 
a  representation  of  what  is  stated  to  be  intended  or  expected,  or 
believed  as  a  matter  of  fact  to  be  made  good  by  the  assured,  and 
will  not  affect  the  contract,  though  the  fact  prove  otherwise,  if  the 
statement  is  made  honestly,  and  not  fraudulently  with  intent  to 
deceive  the  underwriter  and  draw  him  into  a  contract  which  he 
might  otherwise  decline : 

As  a  "belief"  that  a  life  proposed  for  insurance  is  in  good 
health  :  ^ 

Or  a  statement  that  the  vessel  "intends  to  sail  in  September  or 
October  next,"  and  did  not  sail  until  December:^ 

Or  "  is  to  sail  in  five  days,"  though  it  did  not  sail  so  soon  :  ^ 

Or  was  "expected  to  leave  the  coast  of  Africa"  for  the  East 
Indies  "in  November  or  December,"  and  had  left  in  May  :  ^ 

Or  "was  taking  in  paving-stones  for  ballast,  and  will  fill  up  with 
hay,"  and  a  full  load  of  paving-stones  was  taken,  which  was  not 
so  safe  a  cargo  for  the  voyage  :  ^ 

Or  was  expected  to  sail  on  a  certain  day,  and  did  not  sail  on 
that  day :  ^ 

Or  "was  expected  to  sail  on  the  24th,"  and  had  sailed  on  the 
12th  of  the  same  month  :  ~ 

Or  was  "to  go  to  Madeira,  the  Isle  of  France,  Pondicherry, 
China,  the  Isles  of  France,  and  L'Orient,"  and  China  was  omit- 
ted, and,  instead,  the  vessel  went  to  Bengal,  touching  at  divers 
ports  all  within  the  limits  of  the  voyage  described  in  the  policy.^ 
The  risk  of  the  voyage  from  Pondicherry  to  Bengal  was  greater, 
and  the  premium  higher  by  one  per  cent,  than  to  China,  and  the 
voyage  was  extended  beyond  the  usual  length.  Lord  Mansfield 
said,  "If  no  fraud  was  intended,  and  the  real  intention,  at  the 
time  of  making  the  representation,  was  to  go  to  China,"  the  insur- 
ance was  valid. 

1  Pawson  V.  Watson,  Cowp.  785.  c  Stewart  v.  Morrison,  Millar's  Ins. 

2  Bize  V.  Fletcher,  1  Doug.  271.  59. 

3  Whitney  r.  Haven,  13  Mass.  11.172.  7  Rico   v.  N.  E.  Mar.  Ins.  Co.,  4 

4  Barber  v.  Fletcher,  1  Doug.  305.  Pick.  439. 

5  Brj-ant  v.  Ocean  Ins.  Co.,  22  Pick.  ^  Bizc  v.  Fletcher,  1  Doug.  271. 
200. 


SECT.  I.]    WHAT  IS  A  REPRESENTATION  OR  CONCEALMENT.  299 

So,  where  the  broker  said  the  vessel  was  American,  but  "he 
was  directed  not  to  warrant  any  thing,"  it  was  held  not  to  be  a 
representation.^ 

In  case  of  the  insurer's  proposing  to  have  a  warranty  introduced, 
that  the  ship  should  sail  from  St.  Petersburg  before  the  1st  of 
August,  and  the  broker  said,  "There  is  no  occasion  for  that ;  the 
ship  has  sailed  some  time,  and  must  now  be  at  Gothenburg ;  there 
is  a  cargo  ready  for  her,  and  she  is  sure  to  be  an  early  ship,"  — 
and  the  ship  had  arrived  at  Gothenburg  before  the  1.3th  of  June, 
when  this  conversation  took  place,  but  was  detained  there,  waiting 
for  a  cargo,  until  after  the  8th  of  September,  Lord  Ellenborough 
said  :  "I  find  no  representation  here  upon  the  falsity  of  which  the 
underwriters  can  defend  themselves.     The  broker  said  in  unquali- 
fied terms,  that  a  cargo  was  ready ;  but  this,  from  its  very  nature, 
was  only  the  subject  of  expectation  and  belief.     All  the  broker 
could   be  understood  to  mean  was,  that  a  cargo  had  been  ordered, 
and  that  there  was  every  reason  to  suppose  it  would  be  ready."  2 
The  consignee  of  goods  insured  from  Lisbon  to  London   had 
received  a  letter  from  the  owner  and  consignor,  dated  October 
27th,  1807,  saying  the  goods  would  be  sent  by  a  Portuguese  ship, 
which  "would  sail  in  a  few  days."     This  letter  was  not  shown  to 
the  underwriters,  but  the  broker  told  them,  "  that  the  ship  was  to 
sail  in  a  few  days."     It  appeared  by  the  broker's  testimony,  that, 
if  it  had  been  represented  that  the  ship  would  not  sail  within  a 
month,  insurance  could  not  have  been   effected,  as  the  French 
army  was  expected  at  Lisbon.     The  ship  did  not  sail  until  the 
29th  of  November,  and  was  the  next  day  stopped  in  the  Tao-us 
by  the  French.     Lord  Ellenborough  said  :"  "  The  owner  of  the 
goods  could  speak  of  the  sailing  of  the  vessel  only  from  probable 
expectation,  and  if  such  representation   was   made  bona  fide,  it 
should  not  conclude  him."     The  other  judges  were  of  the  same 
opinion.'^ 

At  the  time  of  effecting  a  policy  on  a  ship  at  and  from  Messina 
to  England,  the  broker  had  represented  that  the  ship  "  was  then 

1  Christie  r.  Secretan,  8  T.  K.  192.        3  Bowden    v.   Yaughan,    10   East, 

2  Hubbard  v.  Glover,  3  Camp.  313.     415. 


300  REPRESENTATION   AND    CONCEALMENT.         [CHAP.  VII. 

at  or  near  Messina,  or  on  her  homeward  voyage."  Mr.  Justice 
Gibbs  said  :  "  It  was  only  a  conclusion  which  he  drew,  and  if  there 
was  reason  to  doubt  the  truth  of  the  conclusion,  the  underwriter 
should  have  inquired  into  the  ground  of  that  expectation."  ^ 

Where  the  person  applying  for  a  policy,  in  behalf  of  the  assured, 
on  a  certain  description  of  furs,  gives,  as  a  reason  why  the  insur- 
ance should  be  low,  that  the  articles  come  under  the  exception  of 
particular  average  ;  it  is  held  in  New  York,  that  this  is  not  a 
representation  of  a  fact,  but  merely  an  opinion  on  the  construction 
of  the  memorandum,  and  that  the  contract  is  not  affected  by  it.^ 

552.  The  represented  belief,  intention,  or  expectation,  may  he 
that  of  the  assured  or  his  agent,  or  some  third  party,  and  may 
have  reference  to  a  fact  or  event  expected  or  believed  by  some  one 
at  a  distance  from  the  negotiating  parties,  and  at  a  previous  time, 
or  it  may  be  of  what  it  is  expected  or  believed  will  occur  at  some 
time  posterior  to  the  date  of  the  policy. 

In  either  case,  the  question  may  arise  v/hether  the  material  fact 
or  event  is  absolutely  declared  and  vouched  for  by  the  assured,  or 
a  mere  expectation  or  belief  of  it  is  asserted.  In  either  case  the 
representation  is  of  a  fact,  and  a  material  one,  but  in  one  case  it  is 
that  of  an  event  or  circumstance  directly  affecting  the  risk,  in  the 
other  it  is  the  fact  of  an  expectation  or  belief  of  such  event  or  cir- 
cumstance. 

All  the  cases  agree  that  the  statement  of  an  expectation  or  be- 
lief of  a  fact  is  very  different  from  an  absolute  assertion  of  it.  But 
the  cases  do  not  agree  as  to  what  phraseology  amounts  to  one  or 
the  other  of  these  different  representations.  It  is  true  that  under 
different  circumstances  the  same  language  may  have  different  im- 
ports. The  time  referred  to,  whether  present,  past,  or  future, — 
the  place,  whether  near  or  distant,  —  the  party  speaking,  whether 
the  assured  or  his  agent,  or  a  third  person,  —  the  voyage  or  adven- 
ture referred  to,  —  the  subject-matter,  whether  within  the  know- 
ledge and  belonging  to  the  business  and  experience  of  the  party 
making  the  statement  or  otherwise,  —  and  the  relative  position  of 


1  Brine  V.  Fcathcrstonc,  4  Taunt.        ~  Astor  v.  Union  Ins.  Co.,  7  Cowen, 
869.  202. 


SECT.  I.]     AVHAT  IS   A   REPRESENTATION   OR  CONCEALMENT.        301 

the  parties  negotiating,  —  all  these  circumstances  and  others  may- 
have  a  bearing,  and  need  to  be  taken  into  account,  in  putting  one 
or  the  other  construction  upon  the  representation.  It  will  not 
necessarily  follow,  therefore,  that  two  different  constructions  of 
precisely  the  same  language,  in  different  cases,  are  inconsistent 
with  each  other. 

It  would,  therefore,  be  unprofitable  to  go  into  a  critical  discus- 
sion of  the  opposite  interpretations  put  upon  apparently  similar,  or 
literally  identical  phraseology,  in  different  cases,  since  the  oppo- 
site constructions  may  both  be  right,  and  whether  they  are  so  or 
not  will  be  of  very  inconsiderable  importance  in  determining,  in 
other  cases,  that  a  representation  is  an  opinion,  belief,  or  expecta- 
tion of  a  fact,  or  a  positive  asseveration  or  promise  of  it,  and  in 
which  sense  the  underwriters  were  authorized  to  underetand  it. 

553.  Whether  the  assured  is  bound  by  a  jiromissory  representa- 
tion ? 

This  inquiry  relates  to  a  statement  made  otherwise  than  in  the 
policy,  as  is  usually  understood  by  the  term  "  representation." 
The  general  doctrine  relative  to  the  written  contract  of  insurance, 
as  well  as  other  written  contracts,  as  already  stated,^  is  that  it  may 
be  explained,  but  its  provisions  cannot  be  superseded,  or  independ- 
ent additional  ones  introduced,  by  oral  or  written  communications 
that  took  place  between  the  parlies  in  their  preliminary  negotia- 
tion. But  fraudulent  communications  are  universally  excepted  ; 
these -are  at  common  law  a  ground  of  annulling  contracts  thereby 
obtained.  Equity,  which  is  a  part  of  the  "law,"  though  not  of 
the  "common  law,"  goes  further,  and  either  corrects  and  reforms 
written  or  other  contracts,  made  in  some  respects  or  wholly  through 
mistake,  or  annuls  them.  As  marine  insurance  belongs  to  com- 
mercial jurisprudence,  into  which  the  principals  of  the  civil  law 
and  equitable  jurisprudence  are  largely  infused,  the  implied  reser- 
vation as  to  mistake  has  been  very  liberally  construed,  as  we  see 
through  the  whole  of  this  subject  of  representation  and  conceal- 
ment, and  also  occasionally  under  other  heads.  The  same  princi- 
ple has  been  extended  to  the  other  species  of  insurance. 

1  Supra,  c.  1,  s.  8  and  13. 
VOL.  I.  26 


302  REPRESENTATION   AND    CONCEALMENT.        [CIIAP.  VII. 

The  principle  is,  that  neither  party  shall  be  permitted  to  take 
advantage  of  his  own  knowledge  and  the  other's  ignorance  of  ma- 
terial facts,  or  his  own  forgetfulness  of  such  facts,  which  he  was 
bound  to  have  remembered,  or  his  own  ignorance  of  such  facts, 
which  he  was  equitably  bound  to  have  known,  to  the  prejudice  of 
the  other.  The  nature  of  the  contract,  and  the  usual  position  of 
the  parties  in  relation  to  its  subject-matter,  render  this  principle 
fundamental.  A  question  has,  however,  arisen  concerning  its  ap- 
plication to  a  verbal  or  written  statement  as  to  the  future. 

The  fact  of  effecting  the  policy  is,  as  we  shall  more  fully  see 
hereafter,  an  implied  stipulation  by  the  assured  for  the  verity  of 
his  statements  relative  and  material  to  the  risk  ;  and  if  they  relate 
to  existing  or  past  circumstances,  there  is  no  question  that  he  must 
be  answerable  for  their  truth  under  this  implied  condition.  The 
question  is,  whether  a  statement  relative  to  a  future  fact  stands  on 
a  different  footing.  This  question  is  very  much  mixed  up  with 
that  of  a  representation  of  an  expectation  or  belief,  as  will  be  seen 
in  the  cases  cited  under  those  heads,  in  which  the  courts  occasion- 
ally imply  or  assert  ^  that  such  a  representation  has  not  the  effect 
of  a  stipulation  for  the  futLwe,  and  to  give  it  such  effect  it  must  be 
a  part  of  the  policy. 

The  question  can  have  relation  only  to  a  representation  honestly 
made,  for  it  is  admitted  on  all  hands  that  the  holding  out  of  any 
expectation,  or  the  making  of  any  promise  of  material  future  facts 
with  the  intent  fraudulently  to  induce,  and  thereby  inducing,  the 
insurer  to  sign  a  contract,  will  render  it  void. 

A  Scotch  case  involving  this  question  came  up  to  the  British 
House  of  Lords,  upon  a  policy  underwritten  at  Glasgov/,  on  the 
iSlh  of  June,  on  the  ship  B.  and  cargo,  from  Nassau,  in  New 
Providence,  to  Clyde.  The  correspondents  of  the  assured  at 
Nassau  wrote  to  them,  ''The  B.  will  sail  on  the  1st  of  May." 
She  in  fact  sailed  on  the  23d  of  April,  for  the  purpose  of  taking 
advantage  of  convoy,  and  was  captured  by  an  American  privateer 
on  the  1  1th  of  May.  The  case  turned  upon  the  question,  whether 
it  was   a   representation  of  an    expectation,  or  an  undertaking  for 

'  Suu  llryant  r.  Ocean  Ins.  Co.,  22  Pick.  200. 


SECT.  I.]     WHAT  IS  A  REPRESENTATION  OR  CONCEALMENT.  303 

the  sailing.  And  it  was  contended  that,  as  there  was  no  mala 
fides,  the  policy  ought  not  to  be  affected  b)'lhe  mistake  as  to  the 
time  when  the  ship  would  sail.  Lord  Chancellor  Eldon,  giving 
his  opinion  in  the  House  of  Lords,  said  :  "In  case  of  such  a  mis- 
representation, mala  fides  is  not  necessary  to  render  the  contract 
inoperative."  He  considered  a  statement  of  a  fact,  to  be  verified 
in  future,  to  be  no  less  binding  than  one  relative  to  an  existing  or 
past  fact.^  The  judgment  was  in  conformity  to  his  opinion  con- 
firming that  of  the  Scotch  Court  of  Appeals. 

The  construction  of  the  representation  is  apparently  in  direct 
opposition  to  that  put  upon  an  equivalent  phraseology  under  ap- 
parently precisely  similar  circumstances.  But  we  pass  over  the 
question  whether  the  underwriters  were  authorized  to  understand 
this  to  be  a  positive  undertaking  of  a  particular  day,  instead  of  an 
expression  of  an  expectation  merely,  for  whatever  the  construction 
might  be  in  this  case,  it  would  have  little  or  no  authority  in  any 
other,  as  before  suggested.  We  will  also  pass  over  the  question 
of  fact,  whether  the  sailing  on  that  particular  day  was  material, 
this  being  a  question  for  the  jury  in  the  particular  case.  Lord 
Eldon  assumes  that  it  must  have  been  material,  in  order  that  a 
noncompliance  with  it  should  render  the  contract  inoperative. 

The  doctrine  of  this  case,  then,  to  our  present  purpose,  and  a 
doctrine  well  founded  and  sanctioned  by  a  preponderating  weight 
of  authority,  is,  that  a  positive,  ajjirmaiive  representation  of  mate- 
rial facts  in  respect  to  the  future  is,  in  effect,  a  stipulation  that 
they  shall  he  suhstantially  as  stated,  and  that  a  nonfulfilment  of 
such  a  representation  will  defeat  the  policy,  if  it  occurs  prior  to,  or 
simultaneously  with,  the  commencement  of  the  risk,  or  be  a  ground 
of  forfeiture,  if  afterwards  ; 

As  where  the  assured  in  a  fire  policy  stated  that  a  stove  was  to 
be  substituted  for  an  open  fireplace  :  ^ 

And,  also,  where  the  assured,  in  a  marine  policy,  stated  that 


1  Dennistown  v.  Lillie,  3  Bligh,  202.  ground  taken  by  Mr.  Chancellor  Wal- 

2  Alston  r.  Mechanics'  Mut.  Ins.  Co.,  worth,  that  such  a  statement,  not  being 
1  Hill,  510,  which  was,  however,  re-  inserted  or  referred  to  in  the  policy, 
versed  in  the  Court  of  Errors,  on  the  did  not  bind  the  assured,    4  Hill,  329. 


304  REPRESENTATION   AND   CONCEALMENT.         [CHAP.  VII. 

the  goods  insured  would  be  carried  in  the  master's  chest  as  his 
own.' 

Mr.  Duer^  supports  the  doctrine  that  a  promissory  representa- 
tion is  obligatory,  as  being  in  effect  a  stipulation  for  the  future, 
and  he  makes  references  to  authorities  directly  ^  or  impliedly  **  in 
favor  of  that  doctrine. 

In  a  Massachusetts  case,  a  fire  policy  on  a  factory  and  its  con- 
tents provided  for  its  being  void  unless  the  assured  had  made  "a 
just,  true,  and  full  exposition  of  the  facts  and  circumstances,  so  far 
as  known  to  him  and  material."  If  we  add,  "and  not  known  to 
the  insurer,"  it  is  precisely  what  is  implied  in  every  policy,  and 
was  so  construed  by  the  court.  It  was  held,  that  the  assured  was 
bound  by  his  written  statements,  not  as  warranties,  but  as  repre- 
sentations, which  would  be  satisfied  if  they  were  substantially 
made  good.  Two  of  these  statements  in  reply  to  questions  were 
as  follows  :  "  A  cask  of  water  and  buckets  will  be  kept  in  each 
story."  "An  examination  will  be  had,  say  thirty  minutes  after 
work."  The  assured  was  held  to  be  bound  for  a  continued  sub- 
stantial compliance  with  these  representations,  during  the  period 
of  the  policy.  In  other  words,  the  representation  in  connection 
with  the  condition  expressed  in  this  policy,  and  implied  in  all  poli- 
cies, amounted  to  a  binding  stipulation  for  the  future,  which  must 
be  substantially  complied  with. 

So,  under  a  decision  of  the  Supreme  Court  of  the  United  States, 
if  it  is  represented  that  "no  lamps  are  used  in  the  picking-room" 
of  a  factory,  the  policy  will  be  forfeited  by  using  them  there.^ 

So  it  is  held  by  the  Supreme  Court  of  Massachusetts  that  a  pro- 
missory representation  is  binding  if  not  inconsistent  with  or  super- 
seded by  the  provisions  of  the  policy.*' 

1  Ilimely   v.   Stewart,   1  Brevard,  3  ;>Jarsh.  Ins.,  p.  450,b.  1,  c.  10,  s.  1. 

200.  4  Kice  V.  N.  E.  Marine  Ins.  Co.,  4 

In  Flinn  v.  Tobin,  1  bloody  &  M.  Pick.  439. 

3G7,  Lord  Tentorden  seems  to  be  of  ^  Clark  v.  Manufacturers'  Ins.  Co., 

opinion  that  a  non-fulfilment  of  a  pro-  8  Howard,  235. 

raissory  representation  will  defeat  the  ^  Houghton  v.  Manufacturers'  Mut. 

policy  only  in  case  of  fraud.  Fire  Ins.  Co.,  8  Mctc.  R.  114 ;  Supra, 

•2  2  Marine  Insurance,  G57.  No.  C6. 


SECT.  I.]    WHAT  IS  A  REPRESENTATION  OR  CONCEALMENT.  305 

It  is  singular  that  this  question  respecting  a  promissory  repre- 
sentation being  obligatory  should  ever  have  been  raised,  since 
administrative  jurisprudence  abounds  with  instances  of  the  delibe- 
rate recognition  of  the  obligation  imposed  by  such  a  representation, 
particularly  those  of  a  future  time  of  sailing.  Representations 
relative  to  neutral  ownership  and  insignia,  and  those  of  the  occu- 
pancy of  buildings  under  fire  policies,  have  been  invariably  held  to 
relate  to  the  whole  period  of  the  risk.  The  representation  is  con- 
strued to  be  of  the  €Pxisting  facts,  and  also  of  the  continuance  of 
them,  as  far  as  this  depends  on  the  assured.^ 

554.  Whether  a  representation  to  the  first  or  to  an  intermediate 
underivriter  of  a  series  of  underwriters  on  the  same  policy,  is  con- 
structively such  to  the  subsequent  ones,  so  far  as  they  could  avail 
of  it  in  discharging  themselves  from  the  contract  ? 

Lord  Mansfield  said  it  had  been  determined  in  divers  cases  that 
a  representation  to  the  first  underwriter  extends  to  all  the  others.^ 
The  principle  on  which  this  rule  rests  is,  that,  in  offering  to  a 
party  a  policy  subscribed  by  another,  the  insured  implies  a  pro- 
posal that  the  party  to  whom  it  is  offered  shall  enter  into  the  same 
contract  which  that  other  has  entered  into  whose  name  is  already 
upon  it,  unless  such  presumption  is  rebutted  by  what  passes  be- 
tween the  parties  to  the  subsequent  signature ;  and  the  contract 
will  not  be  the  same  if  there  are  certain  conditions  between  the 
parties  to  the  prior  subscription  which  do  not  form  a  part  of  the 
contract  between  those  to  the  subsequent  one. 

The  rule  is  usually  stated  generally,  that  a  representation  to  the 
first  underwriter  is  such  to  the  others.  But  wherever  it  is  referred 
to,  the  meaning  evidently  is,  that  the  subsequent  subscribers  may 
avail  of  the  rule  in  defence  against  a  claim  on  the  policy,  not  that 


1  Williams  v.  N.  E.  Mut.  Fire  Ins.  No.  527,  seems  not  to  be  In  accord- 
Co.,  31  Maine  (1  Redd.)  R.  219  ;  Un-  ance  "with  the  current  of  authorities, 
derhill  v.  Agawam  Mut.  Fire  Ins.  Co.,  2  Barber  v.  Fletcher,  Doug.  305. 
6   Cushlng's  (Mass.)   R.  440.      See  See  also  Pawson  v.  Watson,  Cowp. 
infra,  No.  638.     Benham  v.  United  785 ;  Stackpool  v.  Simon,  Park,  (8th 
Guarantee  Co.,  Eng.  Law  &  Eq.  R.  ed.)  932;  Marsh.  772;  Feise  v.  Par- 
(Press  of  Little,  Brown  &  Co.)  ;  S.  C,  kinson,  4  Taunt.  640. 
Eng.  Law  Jurist,  (n.  s.)  cited  supra, 
26* 


306  REPRESENTATION   AND    CONCEALMENT.  [CIIAP.  VII. 

the  assured  can  avail  of  it  to  charge  them,  which  would  be  absurd. 
The  rule  is  accordingly  stated  above,  with  that  qualification.  Lord 
Ellenborough  says,  the  rule  is  to  be  received  with  great  qualifica- 
tion, and  intimates  something  similar  to  the  one  above  made.^ 
The  rule  was  held,  in  South  Carolina,  not  to  avail  against  the  sub- 
sequent subscriber.^ 

It  has  been  held  that  a  representation  to  the  first  signer  of  the 
slip,  who  was  not  the  first  to  the  policy,  did  not  extend  to  the 
others.  It  was  so  held  in  England  because  the  slip,  not  being 
stamped,  could  not  be  given  in  evidence  for  the  purpose  of  trans- 
posing the  order  of  the  names  as  in  the  policy.^  But  independ- 
ently of  this  technical  difficulty,  which  does  not  exist  in  the 
United  States,  the  case  plainly  comes  within  the  principle  of  the 
rule  respecting  the  subscribers  to  the  policy  itself. 

The  rule  has  been  strictly  limited  to  representations  to  the  first 
subscription.* 

The  result  of  the  jurisprudence  then  is,  that  the  subsequent  sub- 
scribers may  avail  themselves  of  a  misrepresentation  to  the  first  in 
defence  against  a  claim  on  the  policy. 

Jurisprudence  has  expressly  excepted  a  misrepresentation  to  a 
prior  intermediate  subscriber,  but  I  venture  to  dissent  from  that 
exception  to  the  rule  as  above  qualified,  since  there  is  precisely  the 
same  implied  representation  by  the  assured  in  respect  of  any  prior 
intermediate  subscriber,  as  in  respect  of  the  first  one. 

555.  A  representation  affects  only  the  contract  to  the  making 
of  which  it  has  reference  : 

As  in  case  of  statements  made  to  an  insurance  company  to  in- 
duce it  to  consent  to  another  insurance  of  the  subject  being  made 
by  another  company.^ 

Where  an  application  for  insurance  was  rejected  and  a  subsequent 
one  accepted,  and  a  policy  issued  to  the  same  party  on  the  same 

1  Forrester  v.  Pigou,  1  ]M.  &  S.  9.       Carstairs,  2  Camp.  543 ;  Forrester  v. 

2  Iliracly  t'.  South  Carolina  Ins.  Co.,  Pigou,  1  M.  &  S.  13  ;  Per  Sir  James 
1  (S.  C.)  R.  Const.  Ct.  154.  ]\Iansficld,  C.  J.,  Brine  v.  Feather- 

3Mars(lcn    r.   Reid,  3  East,  572;     stone,  4  Taunt.  869. 
Bell  V.  Carstairs,  2  Camp.  544.  ^  "Williams  v.  N.  E.  Mut.  Fire  Ins. 

4  Per  Lord  Ellenborough,  Bell  v.     Co.,  30  Maine  (1  Redd.)  R.  219. 


SECT.  II,]        TO   WHAT   TIME   llEPRESENTATIOISr  REFERS.  307 

subject  and  risks,  the  policy  was  held  by  Mr.  Justice  Woodbury  not 
to  be  affected  by  the  representation  made  on  the  first  application.^ 
Still  less  will  a  representation  to  insurers  in  one  policy,  affect 
another  subscribed  by  different  underwriters  on  the  same  subject.^ 

556.  Whether  Jacts  knoivn  to  one  director  or  officer  of  a  com- 
pany are  presumed  to  he  known  to  the  company  1 

In  a  case  in  South  Carolina,  the  court  took  the  position,  in  re- 
spect to  a  policy  underwritten  by  an  incorporated  company,  that 
facts  known  to  one  of  the  directors  are  not  to  be  presumed  to  be 
known  to  the  others,  that  is,  to  the  company."^ 

This  must,  however,  depend  iipon  the  agency  and  authority  of 
the  director  in  regard  to  the  taking  of  the  risk,  for  usually  one  offi- 
cer acts  for  the  company  in  communicating  with  the  assured,  and 
facts  known  to  him  are  presumed  to  be  so  to  the  company,  so  far 
as  such  knowledge  is  necessary  to  the  validity  of  the  insurance. 

SECTION  II.       TO   WHAT   TIME   THE   DOCTRINE    OF   REPRESENTATION 

REFERS. 

557.  The  assured  is  responsible  for  whatever  he  has  represented 
concerning  and  material  to  the  risk,  and  in  reference  to  a  policy 
thereupon  issued,  whether  the  representation  is  made  at  the  time  of 
effecting  it  or  previously. 

558.  The  representation  may  be  of  facts  as  existing  at  the  time, 
or  past,  or  may  have  reference  to  the  future. 

559.  In  determining  tvhether  there  has  been  any  concealment  or 
misrepresentation,  reference  is  had  to  the  time  of  making  the  policy, 
or,  where  the  parties  are  at  a  distance  from  each  other,  to  the  latest 
opportunity  of  communication  to  the  insurers  by  the  most  expedi- 
tious of  the  usual  modes.  The  representation  must  be  sufficient 
in  reference  to  that  time,^  and  the  rule  is  the  same  in  respect  to 

'  NicoU   V.  American  Ins.  Co.,  3  East,  457  ;   Edwards  v.  Footner,  1 

Woodb.  &  Minot's  R.  529.  Camp.  530 ;  Himely  v.  Stewart,  1  Bre- 

2  Elting  V.  Scott,  2  Johns.  R.  157.  yard's  (S.  Car.)  R.  209  ;  Byrnes  v. 

3  Himely  v.  South  Carolina  Ins.  Co.,  Alexander,  1  id.  213  ;  and  see  cases 
1  (S.  C.)  R.  Const.  Ct.  154.  generally. 

4  Freeland  v.  Glover,  6  Esp.  14  ;  7 


308  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  VII. 

facts  known  to  the  agent  for  negotiating  the  policy,  as  to  those 
known  to  his  principal. ^  The  time  referred  to  is  that  of  the  effect- 
ive execution  of  the  policy.  Where,  through  mistake  of  the  agent 
of  the  assured,  the  policy  was  at  first  made  upon  the  vessel,  instead 
of  the  cargo,  and,  on  discovery  of  the  error,  a  new  execution  of 
the  policy,  or  what  was  equivalent,  was  requisite,  the  obligation  as 
to  representation  was  held  to  refer  to  the  latter  and  only  effective 
execution.^ 

560.  In  respect  of  representation  and  concealment,  intelligence 
received,  and  known  to  the  clerics  of  the  assured,  at  his  counting- 
room,  or  place  of  business,  which  is  frequented  by  him  at  the  time, 
is  presumed  to  be  known  to  him? 

SECTION    III.       REVOCATION    OF    THE    ORDER. 

561.  If  intelligence  of  a  fact  enhancing  the  risk,  or  of  a  loss, 
is  received  after  an  order  has  been  given  for  insurance,  and  before 
the  contract  is  executed,  it  must  be  communicated  to  the  under- 
writers with  due  diligence,  or  the  order  countermanded.^ 

The  party  who  has  given  the  order  is  not  required  to  send  by 
express  to  countermand  it,  unless  that  is  the  usual  mode.  It  will 
be  sufficient  to  send  by  the  usual  conveyance.^ 

One  of  the  owners  of  a  New  Bedford  ship,  being  in  New  York, 
had  written  to  the  other,  at  New  Bedford,  to  make  insurance. 
His  instructions  were  sent  by  a  vessel  in  the  morning.  In  the 
afternoon  of  the  same  day,  news  was  received  at  New  York  of 
the  loss  of  the  vessel.  Had  he,  on  receipt  of  this  intelligence, 
immediately  sent  by  the  steamboat  to  Newport,  and  thence  by 
mail  to  New  Bedford,  countermanding  the  order,  the  countermand 
would  have  been  received  at  New  Bedford  before  the  policy  was 

I  Fitzherbcrt  v.  Mather,  1  T.  R.  1 2 ;  ^  Watson  v.  Dclafield,  2  Caines,  224 ; 

M'Lanalian  r.  Universal  Ins.  Co.,  1  1  Johns.  150;  2  id.  526. 

Pcters's  Sup.  Ct.  R.  1 70.  5  ggc  Byrnes  v.  Alexander,  1  Bre- 

a  Sawtcll  u.  Loudon,  5  Taunt.  359  ;  vard's  (S.  Car.)  R.  213;    Grieve  v. 

1  Marsh.  R.  99.  Young,  Millar's  Ins.  65. 

3  Ilimely  v.  Stewart,  1  Brevard's  R. 
209;  Byrnes  v.  Alexander,  1  id.  213. 


SECT.  IV.]  BY   AN    AGENT.  309 

made  ;  but  if  he  had  sent  by  mail,  it  would  not  have  been  received 
until  after  the  policy  was  made.  The  jury  were  instructed,  that 
it  is  sufficient,  in  such  case,  to  send  by  the  usual  conveyance ;  and 
it  appeared  that  this  was,  at  the  time,  the  mail  by  land.^ 

"The  only  matter  of  observation,"  says  Mr.  Justice  Story,  "is, 
whether  certain  cases  require  extreme  diligence,  where  the  coun- 
termand may  not  only  probably,  but  possibly  arrive,  in  season. 
We  think,  however,  that  the  rule  requires  only  due  and  reasonable 
diligence.  The  expressions  thrown  out  in  the  cases  intimate  that 
there  might  be  cases  in  which  a  very  prompt  effort  for  communi- 
cation might  be  fairly  deemed  but  due  and  reasonable  diligence  ; 
as  where  the  loss  takes  place  very  near  the  port  at  which  the  in- 
surance is  to  be  made,  and  the  means  of  communication,  by  mail 
and  otherwise,  are  regular  or  numerous ;  or  where,  from  the  lapse 
of  time,  and  the  date  of  the  order  for  insurance,  the  party  cannot 
but  feel  that  every  moment's  delay  adds  many  chances  in  favor  of 
the  insurance  being  made  before  knowledge  of  the  loss."- 

SECTION  IV.   REPRESENTATION  OR  CONCEALMENT  BY  AN  AGENT. 

562.  A  representation  or  concealment  by  an  agent  for  effecting 
the  insurance  or  making  a  representation,  is  that  of  the  principal, 
and  has  the  same  effect  on  the  policy  as  if  made  by  the  principal.^ 

In  this  case,  as  in  all  others  involving  the  responsibility  of  the 
principal  for  the  acts  of  his  agent,  the  latter  must  be  such  for  the 
particular  purpose,  by  previous  appointment,  or  by  the  adoption  of 
his  acts  or  the  recognition  of  his  agency  by  the  party  interested. 

563.  If  the  assured  communicates  bond  fide  to  the  insurers  erro- 
neous intelligence  published  in  the  newspapers,  or  obtained  from 
another  person,  who  received  it  from  his  ov/n  correspondent,  nei- 
ther of  them  having  any  connection  with  the  assured,  and  com- 
municates such  intelligence  to  the  underwriters,  upon  the  faith  of 

'  Green  v.  Merchants'  Ins.  Co.,  10  3  Stewart  u.Dunlop,  4  Brown's  P.  C. 
Pick.  402.  See  also  Andrews  V.  Ma-  483,  n.;  Park.  320.  See  supra,  No. 
fine  Ins.  Co.,  9  Johns.  32.  526,  541,  and  cases  passim. 

2  M'Lanahan  i'.  Universal  Ins.  Co., 
1  Peters's  S.  C.  R.  186. 


310  REPRESENTATION   AND    CONCEALMENT.         [CHAP.  VII. 

which  a  policy  is  made,  and  it  turns  out  thai  the  facts  were  quite 
different  from  what  the  parties  understood  them  to  be,  and  wholly 
on  the  side  of  the  enhancement  of  the  risk,  or  even  if  a  loss  may 
have  happened  subsequently  to  the  time  when  the  risk  is  to  have 
commenced,  still  the  insurance  is  valid. 

So,  if  the  facts  prove  to  be  more  favorable  to  the  risk  than  the 
intelligence,  still  the  assured  cannot  reclaim  his  premium,  if  the 
subject  was  within  the  specified  risks. 

In  such  case  there  is  no  mistake  of  the  facts  between  the  par- 
ties. Each  has  the  same  opportunity  to  make  his  own  conclusions 
from  the  same  intelligence,  and  takes  upon  himself  the  risk  of  a 
mistake  in  so  doing. 

564.  A  difficult  question,  giving  rise  to  discordant  decisions, 
has  arisen  where  insurance  has  been  made  under  a  misapprehen- 
sion of  the  facts  by  the  assured,  occasioned  by  a  concealment  or 
misrepresentation  by  the  master  of  the  vessel,  or  by  some  corre- 
spondent of  the  assured,  who  has  no  agency  respecting  the  insur- 
ance, the  doubt  and  point  of  discrepancy  in  the  decisions  being 
whether  the  master  or  correspondent,  though  not  an  agent  of  the 
assured  for  making  the  insurance,  shall  be  considered  to  be  such 
for  communicating  the  information  to  him  according  to  the  usual 
course  of  business,  of  whose  fraud  or  culpable  gross  negligence  in 
this  respect  the  assured  ought  not  to  be  allowed  to  take  advantage. 
And  the  doctrine  already  stated  on  this  question  ^  is,  that  a  policy 
effected  through  the  fraudulent  misrepresentation  or  concealment 
of  the  master  of  the  vessel,  or  any  habitual  agent  or  correspondent 
or  recognized  representative  of  the  assured,  is  not  at  the  7-isk  of 
the  insurers. 

SECTION    V.       CONSTRUCTION    OF    A    REPRESENTATION. 

505.    The  language  of  a  representation,  like  that  of  a  policy  of 
insurance,  is  usually  to  he  understood  in  its  ordinary  sense. 


1  Supra,  No.  510,  -where  arc  cited  gles  v.  General  Interest  Ins.  Co.,  4 
Gladstone  i'.  Kinfr,  1  M.  &  S.  35  ;  Fitz-  Mason,  74  ;  and  General  Interest  Ins. 
hcrbcrt  v.  Mather,  1  T.  R.  12;  Rug-     Co.  v.  Ruggles,  12  Wheat.  408. 


SECT,  y.]  CONSTRUCTION   OF   A   REPRESENTATION.  311 

566.  A  representation  in  a  letter  written  at  the  'place  of  the 
writer's  residence,  distant  from  that  where  a  policy  is  applied  for 
in  his  behalf,  instructing  his  agent  to  effect  insurance,  and  exhibited 
to  the  insurers  by  the  agent,  is  to  be  construed  according  to  the 
meanini*-  of  the  phraseology  iii  the  place  ivhere  the  letter  is  written. 
It  was  so  held  by  the  Supreme  Court  of  the  United  States  re- 
specting a  statement  by  the  assured,  writing  from  New  York  to 
Boston  for  insurance  on  a  vessel,  that  it  was  "  coppered,"  '  revers- 
ing the  decision  of  Mr.  Justice  Story  in  the  Circuit  Court,  that 
the  construction  must  be  according  to  the  meaning  in  Boston.- 

The  general  doctrine  is,  that  the  language  of  a  contract  is  to  be 
construed  according  to  the  usage  of  the  place  where  it  is  made.^ 
The  same  general  rule  must  apply  to  a  letter,  or  statement,  writ- 
ten or  oral,  though  the  particular  circumstances  of  u  case  may 
readily  be  imagined  to  be  such  as  to  make  an  exception.  Had 
the  letter  been  that  of  a  third  person,  wholly  independent  of  the 
parties,  and  understood  by  both  the  assured  and  insurers  in  a  dif- 
ferent sense  from  that  intended  by  the  writer,  it  would,  if  it  went 
to  the  whole  subject-matter  of  the  contract,  render  it  void,  as  be- 
ing founded  in  mutual  mistake,  as  stated  by  Mr.  Justice  Story  in 
reference  to  the  above  case.  But  if  it  merely  led  the  parties  into 
a  mistake  respecting  some  subordinate,  incidental  matter,  not  be- 
ing the  substantive  subject  and  basis  of  the  contract,  it  would  not 
defeat  the  contract,  as  we  see  in  all  the  cases  of  erroneous  intelli- 
gence acted  upon  by  the  parties  to  the  policy.  Such  a  misunder- 
standing is  at  the  risk  of  either  of  the  parties  that  may  be  affected 
by  it.  The  question  then  is,  whether  a  similar  misunderstanding 
arising  on  the  letter  so  written  by  the  assured  himself,  in  good 
faith,  shall  be  excepted  from  this  rule.  It  does  not  appear  upon 
what  ground  such  an  exception  can  be  made. 

567.  A  representation  imports  not  only  ivhat  is  expressed,  hut 
also  all  the  natural  and  obvious  inferences  from  it.^ 


1  Hazard's  Adm'r  v.  N.  E.  Marine  ^  Supra,  !No.  121. 

Ins.  Co.,  8  Peters's  S.  C.  K.  657.  4  Ratcliflf  u.  Shoolbred,  Marsh.  468; 

2  Hazard  v.  N.  E.  Marine  Ins.  Co.,  1  Park,  Sth  ed.  413. 
1  Sumner,  218. 


312  REPRESENTATION   AND    CONCEALMENT.        [CIIAP.  VII. 

Thus  a  representation  that  a  ship  was  at  a  place  on  a  certain 
day  imports  that  she  was  there  in  safety.^ 

The  rule  may  operate  in  favor  of  the  assured,  as  well  as  against 
him,  for  the  inference  may  be  of  a  fact  which  he  is  bound  to  dis- 
close.2 

A  representation  that  a  vessel  "  is  "  at  a  certain  distant  place, 
means  that  it  is  so  at  the  time  of  making  the  representation.'^ 

After  an  application  for  insurance  of  a  ship  had  been  made,  the 
applicants  stated,  "  Although  our  advices  give  us  no  reason  to  be- 
lieve that  there  will  be  any  articles  contraband  of  war  on  board 
the  ship  Budget,  still  we  wish  to  be  covered  against  all  possible 
risks  ;  we  wish  your  reconsideration  of  the  written  application, 
including  articles  contraband  of  war."  This  was  held  not  to  be  a 
representation  or  warranty  that  the  ship  was  neutral  property.^ 

The  fact  that  the  policy  was  on  the  freight  of  an  American  ves- 
sel from  the  Swedish  island  St.  Thomas  to  Havana,  was  ruled  by 
Mr.  Justice  Cranch,  not  to  imply  that  the  cargo  was  taken  in  at 
St.  Thomas,  and  the  policy  was  ruled  not  to  be  rendered  void  on 
account  of  the  cargo  having  been  taken  aboard  at  Buenos  Ayres, 
then  in  revolt  from  Spain,  and  at  war.^ 

An  insurance  effected  by  a  common  carrier  on  his  Interest  as 
such  in  goods  by  a  certain  steamboat,  does  not  imply  that  he  is 
owner.  It  may  be  applied  to  goods  carried  in  a  boat  chartered 
by  him.^ 

A  representation  literally  and  grammatically  having  reference 
to  the  present  state  of  things,  is  in  many  cases  construed  to  imply 
a  promissory  undertaking  to  maintain  the  same  or  an  equivalent 
state  of  things,  so  far  as  it  shall  depend  upon  the  assured  or  his 
agents,  during  the  continuance  of  the  risk.' 

568.  Where  the  representation  is  ambiguous  or  obscure,  the  con- 
struction will  depend  upon  the  obviousness  of  the  ambiguity  or 

'  Supra,  s.  1.  5  Simmes  u.  Mar.  Ins.  Co.,  2  Crancb, 

2  11,1,1.  C.  C.  R.  618. 

3  Calla;^aii  v.  Atlantic  Ins.  Co.,  1  ^  Cliasc  v.  Washington  Ins.  Co.  of" 
Edw.  Ch.  11.  G4.  Cincinnati,  1  Barb.  (N.  Y.)  Sup.  Ct. 

i  Maryland  &  Ph(jcni.\  Ins.  Co,  v.     II.  57C. 
Batliurst,  ')  tlill  &  Johns.  lOi).  ^  Supra,  No.  553. 


» 


BECT.  v.]  CONSTRUCTION    OF   A   REPRESENTATION.  318 

obscurity.  If  there  is  no  fraud  on  the  "part  of  the  assured,  and  a 
fact  is  imperfectly  represented,  yet  is  so  represented  as  to  obviously 
suggest  further  inquiry  on  the  part  of  the  underwriter,  the  repre- 
sentation is  sufficient ;  ^  but  otherwise  there  is  not  obviously  an 
ambiguity  or  obscurity. 

Tliis  follows  necessarily  from  the  fundamental  doctrine  of  repre- 
sentation which  requires  of  the  assured  to  disclose  material  facts 
not  known  to  the  underwriter  or  presumed  to  be  so.  The  doc- 
trine is  no  less  applicable  in  the  case  in  question  ;  he  is  equally 
bound  to  disclose  an  occasion  for  inquiry,  before  negligence  in  not 
making  it  can  be  imputed  to  the  underwriter.^ 

569.  Discrimination  is  to  be  made  ivhether  the  representation  is 
of  a  certain  fact  or  condition  of  things  specified,  or  merely  of  a 
report  or  intelligence  of  such  fact  or  condition  of  things. 

Thus,  where  the  agent  of  the  assured,  at  the  time  of  making 
insurance,  exhibited  a  letter  from  the  assured,  in  which  he  said 
that  the  vessel  "was  said  to  sail  uncommonly  fast,"  INIr.  Justice 
Story  instructed  the  jury,  that  where  a  letter  contained  a  represent- 
ation of  facts  not  known  to  the  party  writing  it  otherwise  than  by 
information  derived  from  others,  and  so  the  letter  states  the  facts, 
or  it  is  a  necessary  inference  from  the  nature  of  the  facts  them- 
selves, the  representation  is  not  falsified  by  the  mere  proof  that  the 
facts  are  not  so,  if  the  party  communicating  the  information  did 
receive  such  information,  and  bona  fide  confided  in  it.  He  under- 
takes then,  not  for  the  truth  of  the  facts,  but  for  his  having  been 
so  informed.^ 

570.  So  the  distinction  is  to  be  made,  as  we  have  already  seen,^ 
between  an  assertion  of  a  fact,  and  a  mere  statement  of  opinion, 
belief,  or  expectation. 

Accordingly,  if  the  intelligence  as  to  the  time  of  sailing  is  truly 
represented,  the  policy  will  not  be  defeated,  though  it  turns  out  to 


1  Supra,  5G8  ;  infra,  585.  3  Tidmarsh  v.  Washington  Ins.  Co., 

2  In  Nicoll  V.  Am.  Ins.  Co.,  3  Woodb.     4  Mason,  439. 

&  Minot,  C.  C.  R.  529,  the  rule  is  laid        4  Supra,  s.  1,  No.  552. 
down  somewhat  more  largely  in  favor 
of  the  assured. 

VOL.  I,  27 


314  REPRESENTATION   AND    CONCEALMENT.  [CUAP.  VII. 

be  erroneous,  and  both  parties  are  acting  under  a  mistake  as  to 
this  fact.  That  is,  the  parlies  respectively  take  the  risk  of  the 
time  of  sailing.  In  other  words,  they  do  not  contract  upon  an 
implied  condition  that  the  vessel  did  in  fact  sail  at  the  time  sup- 
posed, but  upon  condition  that  the  intelligence  as  to  the  time  of 
sailing  was  truly  represented. 

A  letter  was  exhibited  to  the  insurers,  from  the  captain  of  a  ves- 
sel, R.,  at  Kingston,  in  Jamaica,  to  the  assured,  saying,  "I  shall 
leave  this  on  the  12th,"  which  would  have  made  the  R.  out  of 
time.  Another  letter  from  the  agent  of  the  assured  at  Campo 
Bello,  New  Brunswick,  requesting  his  correspondent  in  Boston  to 
effect  insurance,  was  exhibited,  saying,  the  J.  had  arrived  from 
Kingston,  and  that  the  master  of  the  R.  "  expected  to  sail  on  the 
12th;"  and  a  third  letter  was  exhibited  from  the  same  agent  of 
the  assured  to  the  same  correspondent,  dated  the  following  day, 
saying  that  the  master  of  the  J.  informed  him  that  the  R.  would 
not  sail  till  four  days  after  the  J.,  which  would  bring  the  sailing  of 
the  R.  to  the  24th,  so  that  she  would  not  be  out  of  time.  A 
policy  was  thereupon  written  upon  the  cargo  of  the  R.,  with  the 
memorandum  in  the  margin,  "Expected  to  sail  about  the  24th." 
She  had  in  fact  sailed  on  the  12th.  There  was  either  a  mistake 
by  the  master  of  the  J.  in  stating  that  the  R.  was  expected  to  sail 
in  four  days  after  himself,  or  in  the  agent  of  the  assured  in  stating 
the  information  given  him  by  the  master  of  the  J.  Mr.  Justice 
Story  ruled  that  this  was  a  misrepresentation,  and  whether  inno- 
cent or  not,  did  not  vary  the  legal  result. ^ 

The  plaintiff  thereupon  became  nonsuit,  and  a  new  suit  was 
brought  upon  the  policy,  in  the  Supreme  Court  of  Massachusetts, 
where  it  was  held  to  be  valid.  Parker,  C.  J.,  giving  the  opinion 
of  that  court,  said  :  "If  the  information  obtained  from  the  master 
of  the  J.  was  truly  and  correctly  represented  to  the  president  of 
the  officjE,  although  the  fact  thus  communicated  was  not  true,  there 
was  no  misrepresentation,  for  the  assured  or  his  agent  is  bound 
only  to  communicate  all  the  information  he  has."^ 

1  Baxter  v.  N.  E.  Marine  Ins  Co.,  2  Rice  v.  N.  E.  Marine  Ins.  Co.,  4 
3  Mason,  9G.  Pick.  439.     See   Everett  v.  Desbo- 


SECT.  VI.]         WHAT   FACTS   MUST   BE   DISCLOSED,    ETC.  315 


SECTION    VI.       WHAT     FACTS     MUST     IN     GENERAL     BE     DISCLOSED, 
AND    IN    WHAT    MANNER. 

571.  The  assured  is  not  required  to  communicate  to  the  under- 
writer facts  which  are  presumed  or  proved  to  be  known  to  those 
conversant  with  the  trade,  or  that  are  in  fact  Tcnown  to  the  latter^ 
however  they  may  have  become  so.  He  is  required,  as  a  preli- 
minary step,  to  communicate  to  the  underwriter  all  other  material 
facts  within  his  knowledge,  or  presumed  to  he  so,  or  of  which  he 
is  bound  to  be  informed,  that  would  directly  tend  to  induce  the 
underwriter  not  to  subscribe  the  policy  at  all,  or  to  demand  a  higher 
premium.^ 

"The  facts  lie  most  commonly  in  the  knowledge  of  the  assured 
only,  the  underwriter  trusts  to  his  representation,  and  proceeds 
upon  confidence  that  he  does  not  keep  back  any  circumstance  to 
mislead  the  underwriter,  and  induce  him  to  estimate  the  risk  as  if 
it  did  not  exist.  The  keeping  back  such  circumstance  is  a  fraud, 
and  although  the  suppression  should  happen  through  mistake,  the 
policy  is  void,  because  the  risk  is  different  from  that  understood 
and  intended  to  be  run." 

The  assured,  says  Lord  Mansfield,  "  need  not  mention  what  the 
underwriter  knows,  what  way  soever  he  came  by  that  knowledge, 
or  what  he  ought  to  know,  or  takes  upon  himself  the  knowledge 
of,  or  waives  being  informed  of,  or  what  lessens  the  risk  agreed 
and  understood  to  be  run,  or  general  topics  of  speculation,  or  every 
cause  which  may  occasion  natural  perils,  as  the  difficulty  of  the 
voyage,  kind  of  seasons,  probability  of  hurricanes,  earthquakes, 
&z,c.,  or  every  cause  which  may  occasion  political  perils,  from  the 
rupture  of  states,  from  war,  and  the  various  operations  of  it,  upon 

rough,  5  Bing.  503  ;  Von  Lindenau  v.  troid  v.  Crawford,  and  otter  cases  there 

Desborough,  8  B.  &  C.  586  ;  Maynard  cited  ;  Money  v.  Union  Ins.  Co.,  4 

V.  Rhodes,  1  C.  &  P.  360;  as  to  the  M'Cord's  R.  (S.  Car.)  511  ;  Hoe  v. 

assured's  making  himself  responsible  Mason,  Wash.  (Va.)  R.  107,  in  which 

for  the  representations  of  third  per-  latter    case    the    underwriters  knew 

sons.  that  the  insured  vessel  had  a  letter  of 

1  See  supra,  s.  1,  No.  524 ;  Murga-  marque. 


816  REPRESENTATION   AND    CONCEALMENT.         [cHAP.  VII. 

the  probability  of  safety  from  the  continuance  or  return  of  peace, 
or  the  imbecility  of  the  enemy.  If  the  insurance  be  on  a  private 
ship  of  war,  from  port  to  port,  the  underwriter  needs  not  to  be  told 
of  the  secret  enterprises  it  is  destined  upon.  From  the  nature  of 
the  contract  he  waives  this  information.  If  he  insures  for  three 
years,  he  needs  not  to  be  told  any  circumstance  to  show  it  may 
be  over  in  two,  or  if  he  insures  a  voyage  with  liberty  of  deviation, 
he  needs  not  to  be  told  what  tends  to  show  there  will  be  no  devi- 
ation. Men  argue  differently  from  natural  phenomena,  and  the 
means  of  information  and  judging  are  open  to  both  ;  each  professes 
to  act  on  his  own  skill  and  sagacity.  The  rule  is  adapted  to  facts 
which  are  privately  known  to  one  party,  and  which  the  other  is 
ignorant  of,  or  has  no  reason  to  suspect."^ 

This  lucid  and  comprehensive  compend  of  the  doctrine  of  repre- 
sentation and  concealment  was  m'ade  by  that  eminent  judge  and 
jurist,  in  reference  to  an  insurance  in  England  for  one  year  against 
capture  on  property  at  Fort  Marlborough,  in  Sumatra,  effected  for 
Carter,  the  governor.  His  agent  in  London,  who  negotiated  for 
the  policy,  knew  of  a  letter  of  the  assured  written  the  preceding 
year,  at  the  same  time  with  the  order  to  him  to  get  insurance,  and 
received  by  the  Directors  of  the  East  India  Company  in  London, 
notifying  to  them  that  the  French  had  that  year  a  design  of  attack- 
ing the  settlement,  which  they  might  revive,  and  that  the  fort  was 
inadequately  supplied,  and  could  not  be  maintained  against  a 
European  enemy.  And  the  letter  to  the  agent  ordering  the  insur- 
ance was  of  the  same  import.  Neither  of  these  letters  was  disclosed 
to  the  underwriters. 

The  fort  was  captured  by  the  French  within  the  year,  and  with 
it  the  insured  property  ;  and  in  the  suit  for  the  loss,  Lord  Mans- 
field, giving  the  opinion  of  the  court,  remarked,  that  if  any  enter- 
prise had  been  known  by  the  governor  to  be  actually  on  foot  at 
the  time  of  his  writing,  it  would  have  varied  the  case ;  but  no  such 
enterprise  was  then  on  foot,  and  the  underwriter  was  bound  to 
know  that  the  governor  could  not  consistently  with  his  official  duty 
disclose  the  weak  condition  of  the  fort,  if  it  were  weak ;  and  that 

1  Carter  v.  Bochm,  3  Burr.  1905 ;  1  W.  Bl.  593. 


SECT.  VI.]         WHAT   FACTS   MUST   BE   DISCLOSED,   ETC.  317 

all  the  circumstances  relative  to  a  probability  of  an  attack  were 
more  within  the  underwriter's  means  of  knowledge  than  those  of 
the  governor. 

As  to  the  inferences  to  be  drawn  from  the  design  of  the  preced- 
ing year,  if  there  had  been  one,  they  were  mere  matter  of  specu- 
lation. He  said,  by  way  of  illustration,  if  an  assured  on  a  ship 
knew  that  *'  two  privateers  were  lying  in  her  way,  without  men- 
tioning the  fact,  it  would  be  fraud  ;  but  if  he  knew  that  two  had 
been  there  the  year  before,  it  would  be  no  fraud  not  to  mention  it." 
The  decision  was  accordingly  in  favor  of  the  assured.^ 

Whether  a  policy  be  effected  on  a  life,  or  a  ship,  or  against  fire, 
says  Mr.  Justice  Bayley,  "if  a  circumstance  be  not  communicated, 
the  question  is  whether  it  was  material,  not  whether  the  assured 
believed  that  it  was  material."  ^ 

572.  The  underwriter  is  under  a  corresponding  obligation, 
mutatis  mutandis. 

"Good  faith,"  says  Lord  Mansfield,  "forbids  either  party,  by 
concealing  what  he  knows,  to  draw  the  other  into  a  bargain,  from 
his  ignorance  of  that  fact,  and  his  believing  the  contrary."^ 

573.  The  assured  needs  to  represent  to  the  underwriter  such 
facts  only  as  relate  to,  and  are  material  to,  the  risJc  insured  against. 

Every  policy  leaves  some  perils  and  losses  at  the  risk  of  the 
assured,  and  by  some  policies  only  a  single  risk,  as  that  of  capture, 
or  fire,  is  insured  against,  and  by  the  definition  of  a  material  fact,^ 
it  is  one  concerning  the  risks  covered  by  the  policy.  But  many 
circumstances  affect  both  the  risks  insured  against  and  others  indis- 
criminately, and  such  must  be  disclosed  not  the  less  because  they 
affect  other  risks  than  those  covered  by  the  policy.^ 

574.  It  has  already  been  stated,  that  a  mere  matter  of  belief  or 
expectation  or  opinion  of  the  assured,  not  arising  on  any  specific 


'  Carter  v.  Boelim,  supra.    See  also  3  Per  Lord   Mansfield,   Carter  v. 

Thompson  v.  Buchanan,  4  Bro.  P.  C.  Boehm,  3  Burr.  1905  ;  S.  C,  1  W.  Bl. 

482;  S.  C,  Millar's  Ins.  79.  575. 

8  Von  Lindenau  v.  Desborough,  3  4  Supra,  No.  551. 

C.  &  P.  353.  5  See  2  Duer,  Mar..  Ins.  578. 
27* 


318  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  VII. 

material  fact  in  his  knowledge  not  known  or  presumed  not  to  be 
known  to  the  underwriters,  will  not,  although  communicated  to 
them,  constitute  a  representation.^  It  follows  that  the  assured  is  not 
bound  to  disclose  his  mere  belief,  expectation,  or  opinion. 

Thus,  where  the  agent  for  effecting  the  policy  did  not  disclose 
a  letter  from  the  assured  expressing  a  fear  that  the  vessel  was  out 
of  time,  it  was  held  not  to  affect  the  policy,  if  the  assured  had  no 
specific  information  on  the  subject.^ 

575.  Though  the  assured  is  not  bound  to  communicate  his  own 
expectations  and  opinions  and  speculations  upon  facts,  he  must 
communicate  information  on  which  the  underwriters  may  form  their 
own  expectations. 

Where  the  owners  of  The  Rising  Sun,  then  at  Riga,  received  a 
letter  informing  them  "that  the  order  lately  received  there,  to  send 
the  papers  of  all  vessels  that  should  arrive  at  St.  Petersburg,  had 
produced  a  great  sensation  on  account  of  the  detention  which  it 
would  occasion  ;  that  The  Rising  Sun  must  share  the  same  fate, 
and  that  her  papers  had  been  sent  to  St.  Petersburg;"  and  the 
broker  did  not  show  the  letter  to  the  underwriters,  but  stated  that 
"the  ship's  papers  were  sent  to  St.  Petersburg  for  examination  ;" 
Lord  Ellenborough  said  to  the  jury,  "  The  assured  are  only  bound 
to  communicate  facts.  The  broker  did  communicate  the  fact  of 
the  ship's  papers  being  sent  to  St.  Petersburg  for  examination  ; 
he  was  not  bound  to  communicate  the  sensations  and  apprehensions 
which  this  fact  produced  at  Riga."  ^ 

Here  was  ground -for  an  expectation  or  apprehension  of  the  de- 
tention of  the  ship,  and  Lord  Ellenborough  ruled  that  such  ground 
was  sufliciently  comnmnicated,  so  that  the  underwriters  had  a  fair 
opportunity  to  make  their  own  inferences. 

But  many  instances  will  occur  in  the  illustrations  supplied  by 
jurisprudence,  and  subsequently  stated,  especially  respecting  in- 
formation relative  to  the  expectation  of  the  time  of  sailing  from  a 
foreign  port,  where  it  is  incumbent  upon  the  assured  to  disclose 


1  Supra,  8.  1.  22,  p.  1319.     See  also  cases  supra, 

~  Klein     v:    Lancaster     Ins.    Co.,     No.    571. 
Wharton's  Dig.,  tit.  Insurance,   No.        3  Bell  r.  Bell,  2  Camp.  479. 


SECT.  VI.]         WHAT   FACTS   MUST   BE   DISCLOSED,   ETC.  319 

the  expectations  and  hopes  and  apprehensions  of  liis  agents  or  cor- 
respondents, or  of  the  master  of  the  vessel. 

576.  It  is  sufficient  if  the  assured  discloses  the  condition  of  the 
ship  at  the  date  of  his  last  intelligence,  without  giving  an  account 
of  previous  events. 

The  assured  had  received  intelligence  that  the  natives  on  the 
coast  of  Africa  had  attacked  the  vessel,  and  killed  the  captain,  and 
several  of  the  crew,  whereby,  and  in  consequence  of  disease,  the 
crew  had  been  reduced  from  twenty  to  five  ;  he  afterwards  received 
intelligence  of  the  subsequent  condition  of  the  ship,  and  that  there 
were  nine  men  on  board.  He  disclosed  only  the  last  intelligence 
to  the  insurers.  Lord  Ellenborough  said  :  "You  are  not  obliged 
to  inform  the  underwriters  of  all  by-gone  calamities.  If  the  under- 
writers were  truly  informed  of  all  the  circumstances  known  to  the 
assured  on  his  latest  information,  it  is  sufficient."^ 

So  the  court  in  New  York,  speaking  of  a  risk  at  and  from  Gua- 
daloupe,  to  commence  on  the  28th  of  July,  said,  "It  cannot  be 
material  where  the  ship  was  prior  to  that  day."  ^ 

577.  In  case  of  a  retrospective  policy,  the  assured  is  bound  to 
disclose  intelligence  of  any  extraordinary  enhancement  of  the  risk, 
not  known,  or  reasonably  presumed  to  be  so,  to  the  underivriter, 
whether  it  relates  to  the  past  or  future  risk. 

If  the  assured,  knowing  of  a  previous  loss  within  the  period  of 
the  risk,  conceals  it,  the  policy  will  be  void  for  fraud  ;  but  in  re- 
spect of  prior  losses,  or  to  past  circumstances  tending  to  enhance 
the  risk,  that  are  not  known  to  him,  the  doctrine  is  the  same  as  in 
respect  of  the  future.-^ 

A  question  on  this  subject  occurred  under  a  policy  written  in 
New  York,  there  having  been  a  "  violent  storm"  at  Norfolk,  eleven 
hours  after  the  vessel  sailed  from  that  port,  and  the  representation 
was,  that  "there  had  been  blowing  weather  and  severe  storms  on 
the  coast  after  the  vessel  had  sailed."  A  majority  of  the  Supreme 
Court  were  of  opinion  that  this  was  a  concealment,  because  the 


1  Freeland  v.  Glover,  6  Esp.  14 ;  7        3  Sutherland  v.  Pratt,  11  Mees.  & 
East,  457 ;  3  Smith,  424.  W.  296  ;  S.  C,  12  id.  16. 

2  Kemble  v.  Bowne,  1  Caines,  75. 


320  REPRESENTATION   AND    CONCEALMENT.         [CHAP.  VII. 

particular  storm  had  not  been  specified.  Lewis,  C.  J.,  dissented,^ 
and  apparently  with  some  reason  ;  for  the  distinction  made  by  the 
court  was  certainly  very  nice.  The  representation  was  sufficient 
at  least  to  put  the  insurers  on  inquiry.  All  the  judges  agreed  that 
a  representation  relative  to  the  weather  was  necessary.  The  re- 
sult of  the  trial  shows  the  importance  of  a  specific  disclosure. 

Where  a  vessel  sailed  from  Boston,  November  18th  or  19th,  on 
a  voyage  to  Smyrna,  and  was  not  afterwards  heard  from,  and  a 
policy  was  effected  at  the  same  place  on  the  13th  of  March  fol- 
lowing, it  was  held  not  to  be  a  concealment  affecting  the  policy, 
that  the  assured  did  not  mention  there  having  been  a  storm  at 
Boston  on  the  22d  of  November,  that  is,  three  or  four  days  after 
the  vessel  sailed.  Putnam,  J.,  giving  the  opinion  of  the  court : 
"The  ship,  on  November  22d,  may  have  been  in  pleasant  weather, 
two  or  three  hundred  miles  from  Boston  where  the  storm  raged. 
It  would  have  been  a  somewhat  violent  presumption  to  assume  as 
a  fact,  that  the  ship  encountered  that  storm." ^ 

578.  The  assured  need  not  state  that  other  underwriters  had 
declined  the  risJc,^  or  what  were  their  apprehensions  or  opinions 
respecting  it ;  and  if  he  expresses  his  own  opinion  as  to  the  rate 
at  which  they  would  underwrite,  though  he  knows  they  would  not 
underwrite  at  that  rate,  this  is  immaterial. 

The  assured  applied  for  a  policy  in  Philadelphia,  at  a  premium 
of  fifteen  per  cent.,  saying,  in  their  letter  to  their  agent  for  this 
purpose,  "  We  have  no  doubt  but  that  we  could  get  the  insurance 
effected  in  New  York  at  that  premium."  They  had,  in  fact,  ap- 
plied in  New  York,  and  could  not  obtain  insurance  on  the  risk  at 
any  rate.  It  was  taken  at  Philadelphia  at  twenty  per  cent.  Mr. 
Justice  Washington  instructed  the  jury,  that  this  was  not  a  mis- 
representation that  defeated  the  assurance,  because  it  purported  to 
be  merely  an  opinion,  and  because  the  underwriters  must  have 
known  that  it  was  not  correct,  since  the  assured  would  not  have 


»  Ely  r.  llallett,  2  Camcs's  II.  57.  15  Pick.  310.     See  Ely  v.  Ilallett,  2 

See   Moses  v.  Delaware  Ins.  Co.,  1  Gaines's  R.  57, 

Wash.  C.  C.  R.  385.  3  Rugglcs  v.  General  Interest  Ins. 

2  Fiskc  V.  N.  E.  Alariiic  Ins.  Go.,  Co.,  4  Mason,  74. 


SECT.  VI.]         WHAT   FACTS   MUST    BE    DISCLOSED,   ETC.  321 

paid  twenty  per  cent,  in  Philadelphia,  if  they  could  have  effected 
a  policy  at  fifteen  per  cent,  in  New  York.^ 

579.  If  the  assured  states  as  a  fact,  or  distinctly  implies,  that 
other  insurers  have  already  underwritten  the  risk  at  a  certain  rate 
of  premium,  this  is  considered  to  he  a  representation,  and  the  as- 
sured will  be  answerable  for  its  correctness  accordingly. 

Thus,  where  a  broker  in  London  wrote  to  underwriters  in  Scot- 
land, that  the  assured  '-had  done  as  much  insurance  as  the  under- 
writers in  London  were  inclined  to  take  at  eight  per  cent.,"  and 
not  any  had  been  done  in  London  at  that  rate,  it  was  held  to  be 
a  misrepresentation.^ 

580.  Where  goods  are  insured  from  a  certain  port,  this  may  be 
an  implied  representation  of  their  being  loaded  on  board  there, 
whether  it  is  so,  will  depend  on  the  particular  port,  or  the  voyage 
or  passage  for  which  the  insurance  is  made,  and  what  nations  are 
at  war  at  the  time,  and  upon  the  national  character  of  the  ship  or 
cargo  insured.3 

581.  If  the  order  for  insurance  is  sent  by  a  special  messenger, 
this  must  be  disclosed,  in  case  such  is  resorted  to  only  on  extraor- 
dinary emergencies  between  the  same  places,  and  a  different,  con- 
venient, and  reasonably  expeditious  mode  of  communication  is 
ordinarily  used. 

It  was  held  in  the  French  Court  of  Appeals,  that,  where  the 
order  was  frequently  sent  by  express,  its  being  so  sent  need  not  be 
disclosed."* 

If  the  dates  disclosed  show  plainly  that  the  facts  communicated 
must  have  come  by  express,  the  fact  of  the  express  need  not  be 
specifically  stated.^ 

582.  It  is  not  necessary  to  the  validity  of  the  insurance  in  the 
outset,  that  the  assured  should  disclose  his  intention  to  enhance  or 
vary  the  risk  described  in  the  policy  at  some  intermediate  stage. 

1  Clason  and  Dunham  v.  Smith,  3  state  that  he  does  not  own  the  vehi- 
Wash.  156.  cle.     Supra,  No.  567. 

2  Sibbald  V.  Hill,  2  Dow.  263.  4  Poth.  Ins.  No.  12. 

3  Infra,  No.  939.  A  carrier  who  5  Court  v.  Martineau,  3  Doug.  161. 
insures  his  interest  as  such  need  not 


822  REPRESENTATION   AND    CONCEALMENT.  [CIIAP.  VII. 

Such  an  enhancement  or  change  affects  the  pohcy,  if  at  all,  as  a 
deviation,  and  not  as  a  concealment. 

Such  a  case  is  parallel  to  a  promissory  representation,  in  which 
the  underwriters  are  discharged  from  the  time  of  the  promise  being 
broken  ;  so  in  this  case  they  are  discharged  from  the  time  of  the 
intention  being  put  into  execution. 

The  case  is  also  parallel  to  that  of  a  noncompliance  with  an 
express  or  implied  warranty  at  some  intermediate  stage  of  the  voy- 
age which  is  still  the  same  that  is  described  in  the  policy,  whereby 
the  insurers  are  temporarily  or  ultimately  discharged  from  their  lia- 
bility. The  case  in  question  is,  in  fact,  a  violation  of  the  warranty, 
implied  by  the  fact  of  making  the  insurance,  not  unnecessarily  to 
enhance  or  change  the  risk. 

In  the  first  place,  the  rights  and  liabilities  of  the  parties  to  the 
policy  must  be  correlative  and  reciprocal.  U  the  assured  is  pre- 
cluded from  alleging  a  concealment  as  the  ground  of  reclaiming 
the  premium,  as  I  presume  he  is,  then,  if  there  is  no  fraud  on  his 
part,  he  is  certainly,  as  a  matter  of  equity,  no  less  than  legal  prin- 
ciple, to  be  entitled  to  the  benefit  of  his  contract  until  he  forfeits 
it  by  some  act,  whatever  may  have  been  his  intentions  in  the 
mean  time. 

Let  the  assured  be  himself  master,  and  sail  on  what  shall  be 
considered  to  be  the  voyage  described  in  the  policy,  with  an  inten- 
tion in  some  stage  to  do  what  will  be  an  enhancement  or  change 
of  the  risk,  without  fraud,  and  without  being  aware  that  he  will 
thereby  forfeit  the  policy,  or  with  the  intent  to  forfeit  it  or  suspend 
the  risk  temporarily.  Surely  the  underwriter  has  no  right,  after  a 
loss,  to  interrogate  him  about  such  prior  intention,  which  was  not 
executed. 

It  is  difficult  to  distinguish  this  case,  in  principle,  from  that  of 
instructions  to  another  as  master,  to  the  same  effect.  The  two 
cases  are  substantially  identical,  where  the  voyage  includes  touch- 
ing at  divers  intermediate  ports,  or  is  divided  into  stages  at  which 
the  owner  might  have  a  chance  to  countermand  his  original  in- 
struolions  to  the  master. 

This   reason  ap[)ru',s  with   still   greater,  not  to  say  conclusive 


SECT.  VI.[         WHAT   FACTS    MUST    BE    DISCLOSED,    ETC.  323 

force,  to  a  policy  on  the  goods  of  another  shipper  than  the  owner 
of  the  ship. 

In  the  often  cited  case  before  Lord  Kenyon  and  iiis  associates,' 
on  a  policy  on  goods  by  The  Arethusa,  from  London  to  Jamaica, 
the  master  was  ordered  to  take  the  northern  route,  from  a  certain 
point,  and  touch  at  Cape  Nicola  Mole,  the  southern  route  being 
the  more  usual,  and  the  fact  being  proved  or  assumed  in  the  case, 
that  the  election  of  the  route  from  the  place  where  it  branches 
was  usually  left  to  the  discretion  of  the  captain,  to  be  exercised  on 
arriving  at  that  place.  The  ship  was  captured  on  the  northern 
route  after  having  passed  the  dividing  point.  A  special  jury,  in 
compliance  with  Lord  Kenyon's  ruling,  found  that  the  not  disclos- 
ing of  the  order  given  to  the  captain  was  a  "concealment."  In 
deciding  on  a  motion  for  a  new  trial.  Lord  Kenyon  said,  "The 
fact  that  the  discretion  of  the  captain  was  taken  away  ought 
to  have  been  communicated  to  the  underwriters."  Ashhurst,  J. : 
*■'  Had  the  intention  of  going  to  St.  Domingo  been  first  communi- 
cated to  the  underwriters,  perhaps  they  would  not  have  subscribed." 
Grove,  J.  :  "  The  circumstance "  (namely,  the  order,)  "  should 
have  been  disclosed."  Lawrence,  J.,  assented  to  the  decision  of 
the  other  judges  and  the  jury,  but  not  to  the  grounds  given  for  it. 
He  said,  if  the  capture  had  taken  place  before  coming  to  the  divid- 
ing point,  the  insurers  would,  in  his  opinion,  have  been  liable  for 
the  loss,  but  were  discharged  on  the  ground  of  deviation,  because 
the  master  did  not  in  fact  exercise  his  discretion  in  making  an 
election  of  the  northern  route.  That  is,  if  he  had  used  his  own 
discretion  at  the  dividing  point  in  taking  the  northern  route,  as  his 
order  was,  the  insurers  would  have  been  liable  for  the  loss. 

The  difference  of  the  three  judges  from  Lawrence,  in  the  grounds 
of  their  respective  opinions,  is  that  they  put  their  opinion  upon  the 
non-disclosure,  he  upon  the  captain's  not  in  fact  taking  the  north- 
ern route  by  preference.  Each  either  says  directly,  or  distinctly 
implies,  that,  if  the  capture  had  been  made  before  passing  the 
dividing  point,  the  underwriters  would  have  been  liable  for  the 
loss. 

1  Middlewood  v.  Blakes,  7  T.  R.  162. 


324  REPRESENTATION   AND   CONCEALMENT.  [CHAP.  VII. 

This  case,  so  far  as  it  goes,  concurs  with  the  grounds  stated  in 
support  of  the  proposition  above  laid  down,  of  the  correctness  of 
which  I  should  have  more  decided  confidence,  had  not  a  different 
opinion  been  expressed  by  Judge  Duer.-^ 

583.  We  shall  see  hereafter,  under  the  inquiry  respecting  the 
risks  covered  by  a  policy,  that  a  party  may  be  insured  against  the 
perils  of  an  interloping  trade,  provided  the  underwriter  has  notice 
by  the  policy  itself,  or  otherwise,  that  trade  in  contravention  of 
foreign  commercial  regulations  is  intended.^  Whence  it  follows 
conversely,  that. 

If  the  voyage  jf^'oposed  for  insurance  is  in  contravention  of  a 
recent  foreign  trade-laio  known  to  the  assured,  or  which  he  is  bound 
to  know,  a7id  not  known  or  presumed  from  its  publicity  or  other- 
wise to  he  to  the  underwriter,  such  intended  contravention  must  be 
disclosed,  or  the  underwriter  will  not  be  answerable  for  any  loss 
consequent  thereon. 

584.  Whether  the  fact  that  the  vessel  has  a  letter  of  marque 
must  be  disclosed  ? 

Sile7icc  as  to  this  fact  uill  not  defeat  the  policy,  where  there  is 
no  deviation  or  delay  in  consequence,  except  in  case  of  a  policy 
upon  neutral  goods.  If  the  master  intends  to  use  the  commission 
only  on  the  defensive,  and  uses  it  only  so,  the  insurers  have  nothing 
to  complain  of.  If  he  is  instructed  to  chase  vessels,  but  sees  none 
to  chase,  or  disregards  the  instructions  and  keeps  within  the  terms 
of  the  policy,  it  is  then  the  case  of  instruction  to  enhance  or 
change  the  risk,  involving  a  question  of  deviation,  rather  than  one 
of  representation  and  concealment,  and  will  recur  under  that 
head."^ 

The  doctrine  just  stated  is  inconsistent  with  a  deliberate  deci- 
sion of  Lord  Kenyon  and  Mr.  J.  Grose.^  But  their  opinion  has 
been  doubted,^  and  was  reasserted  with  apparent  hesitation    by 

1  2  Marine  Ins.  491,  &c.  cases  cited  in  the  chapter  on  risks  to 

-  Enicrigon,  toni.  1,  p.  084,  c.  12,  this  point. 

8.  51 ;  Valin,  torn.  2,  p.  131,  tit.  Insur-  3  And  sec  supra,  No.  582. 

ancc,  a.  49;  Us  ct  Cout.  do  la  ]Mer,  4  j)cnIsonu.  Modigllani,  5  T.  R.  580. 

p.  3,  a.  G,  n.  1 ;  and  Parker  v.  Jones,  5  i  Marsh.,  2d  ed.,  p.  282,  book  1, 

13  Mass.  11.   17.'i,  and  divers  others  c.  7,  s.  C. 


SECT.  VI.]         WHAT   FACTS   MUST  BE   DISCLOSED,   ETC.  325 

Lord  Kenyon  himself,^  and  is  unsupported  by  analogy  or  prece- 
dent, and  has  not  been  subsequently  recognized  as  law  in  any  case 
that  has  come  to  my  knowledge. 

585.  Where  a  sufficient  representation  is  made  to  put  the  un- 
derwriters upon  inquiry  for  further  information,  if  they  wish  for 
it,  and  they  neglect  to  make  such  inquiry,  they  are  bound  by  the 
policy.^ 

586.  The  assured  must  make  true  answers  to  the  inquiries  of 
the  insurer,  respecting  circumstances  affecting  the  risk.^ 

Such  inquiries  may  make  it  necessary  that  the  assured  should 
disclose  facts  respecting  which  he  might  otherwise  be  silent.  Cir- 
cumstances affecting  the  seaworthiness  of  the  ship  need  not  be 
disclosed  in  the  first  instance  by  the  assured,  but  he  must  make  a 
true  represenlration  of  such  facts  in  reply  to  the  inquiries  of  the 
insurer : 

As  where  the  assured  is  inquired  of  as  to  the  age  of  the  ship, 
and  the  place  where  she  was  built.^ 

This  principle  is  not  limited  to  the  subjects  of  implied  warran- 
ties. Insurance  being  made  for  a  voyage  upon  which  the  ship 
had  already  sailed,  without  a  disclosure  of  this  fact,  the  court  said  : 
"If  the  insurer  wanted  to  know  whether  the  ship  had  sailed,  he 
ought  to  have  inquired."^  That  is,  an  inquiry  imposes  the  duty 
of  representing  a  fact  which  otherwise  need  not  be  represented. 

586  a.  An  oral  representation  is  sufficient  unless  the  policy  or 
regulations  and  conditions  referred  to  therein,  require  it  to  be 
in  writing.^ 

In  marine  policies  oral  representations  have  been  considerably 
in  use,'''  in  other  species  of  insurance  they  are  usually  required  to 
be  in  writins. 


1  6  T.  K.  382.  3  Infra,  No.  641. 

2  Court  r.  Martineau,  3  Doug.  161;  ^  Popleston   v.   Kitchen,    3    Wash. 
Fort  V.  Lee,  3  Taunt.  381 ;  Alsop  v.  C.  C.  R.  138. 

Commercial  Ins.  Co.,  1  Sumner's  R.  ^  Fort  v.  Lee,  3  Taunt.  381. 

451,  and  cases  generally.     The  doc-  6  Masters  v.  Madison  county  Mut. 

trine  on  this  subject  is  more  definitely  Ins.  Co.,  1 1  Barb.  (N.  Y.  Supr.  Ct.) 

stated  under  the  head  of  construction.  R.  624. 

Supra,  No.  568.  7  Supra,  No.  527, 
VOL.  I.                          28 


326  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  VII. 

587.  The  rules  in  regard  to  representation  apply  as  well  to 
reinsurance  as  to  original  insurance,  and  have  a  broader  applica- 
tion in  one  respect,  for  the  original  assured  is  not  bound  to  make 
any  representation  in  relation  to  his  own  character ;  whereas,  the 
party  effecting  reinsurance  is  bound  to  communicate  facts  within 
his  knowledge  in  relation  to  the  character  of  the  original  assured, 
material  to  the  risk  and  tending  to  enhance  the  premium.^ 

587  a.  A  bottomry  or  respondentia  contract  heing  an  insurance 
by  the  lender,  the  doctrines  in  respect  to  representation  and  con- 
cealment seem  to  he  no  less  applicahle  to  it  than  to  insurance  in 
the  more  ordinary  form. 


SECTION    VII.       SPECIES    OF    PROPERTY,    AND    NATURE    OF    THE 

INTEREST. 

588.  If  the  subject  or  insurable  interest  is  so  described  that  the 
policy  is  applicable  to  it,  the  assured  is,  in  general,^  not  required 
to  disclose  the  particular  nature  and  modifications  of  his  inte- 
rest. 

Where  the  assured  is  only  part-owner,  trustee,  or  mortgager  or 
mortgagee  of  the  ship  and  goods  insured,  or  the  charterer  of  the 
ship,  with  an  agreement  to  pay  for  it  if  lost,  and  so  in  effect  ap- 
plies for  reinsurance,  or  holds  as  administrator,  it  is  not,  in  either 
of  these  cases,  requisite  that  he  should  make  known  his  qualified 
or  partial  interest.^ 

Nor  is  the  owner  of  the  ship  bound  to  state  that  it  is  let  by 
charter-party.* 

589.  But  if  the  national  character  of  the  subject  is  incorrectly 
represented,  and  it  is  material,  the  policy  will  be  void : 


1  N.  Y.  Bowery  Fire  Ins.  Co.,  v.  tcr,  id.  26  7 ;  Williams's  Adm'r  v.  Cin- 
N.  y.  Ins.  Co.,  17  Wend.  359.  cinnati  Ins.  Co.,  1  Wright,  (Ohio)  11. 

2  Sec  supra,  c.  5,  No.  416-424.  542;  Finney  v.  Warren  Ins.   Co.,  1 

3  Oliver  V.  Greene,  3  Mass.  R.  133 ;  Mctc.  16. 

Lawrence  v.  Van  Horn,  1  Caincs's  R.  4  Hodgson  v.  Miss.  Ins.  Co.,  2  La. 

270 ;  Locke  v.  Nortli  American  Ins.  R.  341. 
Co.,  13  Mass.  11.  Gl ;  Bartlctt  i-.  Wal- 


SECT.  VIZ.]  SPECIES   OF   PROPERTY,   ETC.  327 

As  whore  a  ship  represented  to  be  American  was  owned  by 
Spaniards. 1 

590.  Freight  may  be  insured  without  disclosing  that  it  is  for 
only  a  part  of  a  voyage.^ 

591.  Where  the  property  is  of  an  unusual  Jciiid  for  the  voyage, 
or  the  situation  or  use  in  contemplation  of  the  parties,  and  subject 
to  extraordinary  risk,  by  reason  of  its  species  or  nature,  and  the 
underwriter  cannot  be  presumed  to  expect  that  the  policy  might 
be  intended  by  the  assured  to  cover  such  a  subject,  the  insurance 
of  it  under  a  general  description,  such  as  "property,"  "merchan- 
dise," or  the  like,  ivill  not  be  valid  unless  the  kind  of  property  is 
represented  : 

As  in  case  of  the  property  being  live  animals.^ 

592.  The  materiality  of  the  kind  of  title  or  interest  of  the 
assured  may  depend  upon  the  stipulations  and  conditions  of  the 
policy. 

Where  a  fire  insurance  company  had  a  lien  for  premium  on  the 
real  estate  upon  which  the  insured  building  stood,  an  insurance 
upon  it  by  him  as  his  own,  when  he  only  had  a  bond  for  a  deed, 
was  held  not  to  be  binding  upon  the  underwriters.^ 

In  a  Pennsylvania  case,  Gibson,  C.  J.,  and  his  associates  con- 
sider the  statement  of  an  incumbrance  or  prior  lien  to  be  material, 
and  the  omission  to  represent  it  to  be  a  concealment,  upon  the 
ground  that  on  payment  of  a  total  loss  the  underwriters  are  enti- 
tled to  the  cession  of  the  insured  interest,  whether  that  of  owner 
or  mortgagee.^  But  in  this  case,  as  in  marine  insurance,^  the  loss 
may  be  adjusted  by  deducting  the  value  of  the  salvage.  The 
omission  does  not  therefore  seem  to  be  material  and  to  amount  to 
a  concealment  unless  some  inquiry  or  some  representation  made, 
or  some  provision  or  implication  in  the  policy,  renders  the  disclos- 
ure material,  as  in  the  case  before  cited  of  a  lien  for  premium. 

1  Price  V.  Depeau,  1  Brev.  (S.  Car.)  Chesapeake  Ins.  Co.  v.  AUegre's 
R.  452.  Adm'rs,  2  Gill  &  Johns.  164. 

2  Taylor  v.  Wilson,  15  East,  324.  4  Brown  v.  Williams,  28  Me.  R.  252. 

3  AUegre's  Adm'rs  v.  Maryland  Ins.  5  Smith  v.  Columbia  Ins.  Co.,  1 7 
Co.,  2  Gill  &  Johns.  136.     See  Wol-  Penn.  (5  Harris's)  R.  253. 

cott  V.  Eagle  Ins.  Co.,  4  Pick.  429;        6  infra,  No.  1716. 


328  REPRESENTATION   AND    CONCEALMENT.         [CHAP.  VII. 


SECTION  VIII.       USAGES    OF   THE   TRADE    NEED   NOT   BE   DISCLOSED. 

593.  The  underwriter  is  presumed  to  know  the  usages  of  the 
the  particular  trade  insured,^  and  these,  accordingly,  need  not  to 
be  represented  to  them  by  the  assured. 

Where  it  is  customary  on  the  voyage  insured  to  take  fictitious 
clearances,  the  taking  such  need  not  be  disclosed.^ 

The  underwriter  is  presumed  to  know  the  local  situation  and 
circumstances  of  the  ports  comprehended  within  the  voyage,  and 
accordingly  these  need  not  to  he  represented. 

An  insurance  was  made  "from  New  York  to  port  Sisal,"  and 
other  ports.  There  is  no  harbor  at  Sisal,  and  vessels  lie  at  anchor 
in  a  open  roadstead  while  loading  and  unloading.  The  trade  was 
recent  at  the  time  of  making  the  insurance,  and  the  fact  that  there 
was  no  harbor  was  not  disclosed  to  the  underwriters.  Kent,  C.  J., 
said  :  "The  assured  was  not  bound  to  communicate  to  the  under- 
writers his  knowledge  of  Sisal.  This  was  a  matter  of  general 
notoriety,  equally  open  to  the  knowledge  of  both  parties,  and 
which  both  must  be  presumed  equally  to  know."  ^ 

In  the  case  of  an  insurance  on  a  ship  from  Oporto  to  London, 
a  part  of  the  cargo  being  taken  on  board  within  the  bar  of  Oporto, 
the  ship  was  removed  over  the  bar  to  take  in  the  remainder,  as 
was  usual  in  regard  to  ships  of  light  burden,  whence  she  was 
driven  out  to  sea  by  a  gale  of  wind,  and  captured.  The  insurers 
insisted  that  they  should  have  been  informed  that  a  part  of  the 
cargo  was  to  be  taken  in  outside  of  the  bar,  but  Lord  Ellenborough 
ruled,  that  they  "were  bound  of  themselves  to  take  notice  of  the 
usage."  "* 

The  same  opinion,  in  effect,  was  given  respecting  a  policy  upon 
goods  to  a  port  in  Jamaica,  "  till  landed  ; "  and  it  was  usual,  at 
the  port  of  destination,  to  land  the  cargo  in  shallops  from  ships  of 


1  Maryland  and  Phrcnix  Ins.  Co.  v.  3  Delonguemere  v.  N.  Y.  Firemcns' 

Batluirst,  5  Gill  &  Johns.  150;  and  Ins  Co.,  10  Johns.  120. 

sec  supra,  c.  1,  s.  13,  No.  133.  <  Kingston  v.  Knibbs,  1  Campbell, 

3  Plancht  V.  Fletcher,  1  Doug.  238.  508,  n. 


SECT.  VIII.]   USAGES  OF  THE  TRADE  NEED  NOT  BE  DISCLOSED.      329 

the  size  of  that  which  carried  the  goods  insured.  The  court  said, 
"The  underwriter  should  inquire  wliat  is  the  usual  mode  of  land- 
ing the  goods."  ^ 

Where  it  is  usual  for  vessels  on  the  voyage  insured  to  make  an 
intermediate  voyage,  such  intermediate  voyage  may  be  made  with- 
out apprising  the  assurers  that  it  is  intended. 

Such  was  formerly  the  practice  in  India  voyages  ;  the  East 
India  Company  uniformly  reserved,  in  the  charter-party,  the  liberty 
of  employing  the  vessel  one  year  on  intermediate  voyages  from 
port  to  port  in  India.  A  similar  usage  prevailed  in  Newfoundland 
voyages,  and  it  was  held,  that  the  assured  was  not  bound  to  state 
this  to  the  underwriters.  Lord  Ellenborough  said  :  "The  under- 
writer must  refer  himself  to  the  usage  of  the  trade,  which  he  is 
bound  to  know."  ^  "Is  it  notorious  that  ships  in  this  trade,  upon 
their  arrival  at  Newfoundland,  are  either  employed  in  '  banking,' 
or  take  an  intermediate  voyage  ?  If  so,  it  must  be  presumed  to 
be  equally  in  the  knowledge  of  both  parties."  -^ 

A  vessel  being  insured  to  Xibara,  in  the  island  of  Cuba,  the 
assured  omitted  to  state  that  there  were  no  pilots  there.  This  was 
not  a  material  concealment.'* 

A  ship  was  represented  to  be  "  at  Limerick."  She  was,  by  the 
intelligence  on  which  the  representation  was  made,  at  Grass  Island, 
about  nine  miles  below  Limerick,  but  within  the  port  of  that  place, 
and  where  vessels  of  the  size  of  the  one  to  which  the  representa- 
tion related  usually  unload  a  part  of  their  cargoes.  It  was  held, 
that  the  representation  was  true.^ 

594.  It  seems  to  be  the  better  opinion,  that  a  representation  of 
an  intention  to  vary  from  a  usage  of  the  particular  voyage  or 
risJc,  whether  by  sea  or  land,  will  justify  the  variation  and  coun- 
tervail the  evidence  aliunde  of  the  usage,  provided  the  variation 
is  not  inconsistent  ivith  the  explicit  provisions  of  the  policy. 


1  Stewart  v.  BeU,  5  B.  &  A.  238.  Martin,  N.  S.  289.    See  also  2  Gill  & 

2  And  see  ruling  of  Lord  Eldon,  Johns.  1G4. 

Ougier  V.  Jennings,  1  Camp.  505,  n.  5  Bell  v.  Marine  Ins.  Co.,  8  Serg. 

3  Vallance  v.  Dewar,  1  Camp.  503.  &  Kawle,  98. 

4  Neilson  v.  Louisiana  Ins.  Co.,  5 

28* 


330  REPRESENTATION   AND   CONCEALMENT.         [CHAP.  VII. 


SECTION  IX.       EVASION    OF    FOREIGN    COMMERCIAL    AND    MUNICIPAL 

REGULATIONS. 

595.  The  doctrine  has  already  been  stated,  that  the  subjects  of 
one  state  are  not  bound  to  respect  the  commercial  and  municipal 
regulations  of  another.^  Such  reo;ulations  have  often  a  material 
importance  in  determining  the  degree  of  risk,  and  accordingly  the 
question  arises,  how  far  the  assured  is  bound  to  make  a  disclosure 
of  such  as  bear  upon  the  adventure. 

Upon  this  subject  it  has  been  held,  that,  ivhere  the  trade  is 
prohibited  by  the  standing  and  uniform  icell-knoum  regulations 
of  a  foreign  country,  it  is  not  necessary  to  malce  any  representa- 
tion of  the  prohibition.^ 

As  in  an  insurance  on  goods  from  Havana  to  Carthagena,  war- 
ranted American,  when  both  places  were  in  Spanish  colonies."^ 

Nor  is  it  necessary  in  such  case  to  state  that  the  vessel  will 
carry  simulated  papers,  and  that  the  property  will  be  disguised."* 

In  the  case  of  a  vessel  engaged  in  a  smuggling  trade  with  the 
Spaniards  on  the  Mississippi,  Lord  Mansfield  said:  "If  the  insurer 
had,  with  a  full  knowledge  that  it  was  a  smuggling  trade  with 
Spain,  made  the  insurance,  then  it  might  be  a  fair  contract."  ^ 

596.  If  the  assured  has  intelligence  of  a  new  regulation,  by 
which  the  property  is  exposed  to  seizure,  he  is  hound  to  disclose  it. 

An  order  having  been  given  for  insurance  in  London,  on  a  ves- 
sel bound  to  Varel,  on  the  Jade,  a  policy  could  not  be  effected  on 
account  of  information  of  a  recent  decree  of  the  French  Emperor, 
ordering  all  vessels  entering  the  Jade  to  be  confiscated.  The  ves- 
sel was  insured  in  the  United  States,  without  any  disclosure  by 
the  assured  of  a  letter  informing  him  why  insurance  could  not  be 
effected  in  London.     The  court  said  :  "The  letter  contained  in- 


1  Supra,  c.  3,  s.  2,  No.  208.  4  Livingston  v.  Maryland  Ins.  Co., 

2  Pollock  V.  Babcock,  6  Mass.  R.  7  Cranch,  506. 

234.  5  Lever  v.  Fletcher,  Tark,  3G0. 

3  Calbraitb  v.  Gracic,  1  Wash.  C.  C. 

II.  2i;». 


SECT.  X.]  MATTERS    OF    EXPRESS    STIPULATION.  331 

formation  very  material  in  estimating  the  risk.  The  withhokHng 
it  from  the  underwriter  must  be  considered  fraudulent,  and  the 
insurance  was  therefore  void."  ' 

597.  If  a  trade,  not  prohibited  by  standing  regulations,  is 
sometimes  prohibited  and  sometimes  permitted,  the  underivriter  is 
not  bound  to  take  notice  of  its  being  prohibited  at  the  time  of 
making  the  policy.  The  existing  prohibition,  and  the  necessity 
of  using  false  papers,  must  be  disclosed.^ 

598.  It  is  not  necessary  to  inform  the  insurers,  that,  for  the 
purpose  of  saving  duties,  the  ship  takes  out  a  clearance  for  a  port 
of  destination  different  from  that  for  which  she  in  fact  sails,  unless 
the  false  clearance  affects  the  risk  materially. 

A  vessel  cleared  at  Honduras  for  Portsmouth,  for  the  purpose 
of  saving  duties,  though  she  sailed  for  New  York,  to  which  port 
she  was  insured.  The  omitting  to  disclose  this  fact  did  not  affect 
the  policy.^ 

599.  Where  fictitious  clearances  are  customary  on  the  voyage 
insured,  the  underwriters  are  presumed  to  be  acquainted  with  this 
custom,  as  they  are  with  all  other  customs  of  trade. 

In  case  of  a  ship  insured  from  London  to  Nantz,  with  liberty  to 
touch  at  Ostend,  for  and  from  which  port  she  took  clearances,  for 
the  purpose  of  avoiding  certain  duties  at  Nantz,  and  without  any 
intention  of  touching  at  Ostend,  it  was  held,  that  the  policy  was 
not  affected  by  the  omission  of  the  assured  to  state  the  false  clear- 
ances, and  the  purpose  of  taking  them,  as  it  appeared  that  this 
was  the  usage  of  the  trade,  with  which  the  insurers  were  presumed 
to  be  acquainted.* 

SECTION  X.       MATTERS    OP   EXPRESS    STIPULATION    IN    THE    POLICY. 

600.  It  is  not  required  of  the  assured  to  make  a  representa- 
tion of  any  circumstance  which  is  provided  for  by  the  express 
stipulations  of  the  policy. 

1  Hoyt  V.  Gilman,  8  Mass.  II.  336.      R.  217.     See  also  Talcot  i-.  Marine 

2  Blagge  V.  New  York  Ins.  Co.,  1     Ins.  Co.,  2  Johns.  130. 

Caines,  549.  ■*  Planch6  r.  Fletcher,  1  Douglas, 

3  Barnewall  v.  Church,  1  Gaines's     238. 


332  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  VII. 

In  regard  to  subjects  of  the  express  provisions  or  statements  of 
the  policy,  any  other  representation  is  of  no  avail,  since  it  will  be 
controlled  by  the  policy  itself.^ 

On  a  claim  for  a  loss,  it  was  objected,  that  a  circumstance 
bearing  upon  the  character  of  the  property  as  neutral  was  not  dis- 
closed. Spencer,  C.  J.,  for  the  court:  "If  it  be  conceded  that 
those  circumstances  did  enhance  the  risk,  the  answer  is  decisive, 
that  a  party  need  not  communicate  any  thing  with  respect  to  a 
fact,  in  regard  to  which  there  is  an  express  or  implied  warranty."- 

A  vessel  being  insured  "to  Kingston  and  a  market,  in  Jamaica," 
the  master  was  ordered,  when  off  the  east  end  of  the  island,  if  in 
season  to  fulfil  a  contract  to  deliver  goods  at  Port  Maria,  to  put  in 
there  ;  otherwise,  to  proceed  to  Kingston.  The  vessel  put  into 
Port  Maria,  accordingly,  and  returned  towards  the  United  States, 
without  touching  at  Kingston,  and  was  lost  on  her  homeward 
voyage.  It  was  held,  that  omitting  to  state  these  orders  to  the 
underwriters  was  not  a  material  concealment,  for  the  course  of  the 
voyage,  and  the  ports  at  which  the  vessel  might  touch,  must  be 
determined  by  the  description  of  the  voyage  in  the  policy.^ 

SECTION   XI.       MATTERS    OF    IMPLIED    WARRANRY    OR    STIPULATION. 

601.  Blatters  of  implied  agreement  in  the  policy  need  not  he 
represented  by  the  assured  in  the  first  instance.  But  he  is  hound 
to  7na]ce  true  answeis  to  inquiries  hy  the  underiuriters,  relating  to 
matters  of  implied  warranty.  And  though  no  such  inquiries  are 
made,  still,  if  the  assured  voluntarily  make  representations  of  this 
description,  he  U'ill  he  hound  therehy,  and  the  policy  will  be  void, 
unless  they  are  substantially  true. 

It  is  an  implied  agreement  on  the  part  of  the  assured  in  every 
policy,  whether  on  the  ship,  cargo,  or  freight,  that  the  ship  is  sea- 
worthy, and  in  every  respect  sufficient  and  well  fitted  for  the  voy- 
age on  which  she  is  bound.    The  assured  is  not  therefore  required 

i  Astor  V.  Union  Ins.  Co.,  7  Cowcn,  N.  Y.  Firemens'  Ins.  Co.  v.  De  Wolf, 

202.  2  Cowcn,  5G,  in  the  Court  of  Errors. 

2  De  Wolf  V.  N.  Y.  rircmcns'  Ins.  3  Houstoa  v.  N.  E.  Ins.  Co.,  5  Pick. 

Co.,  20   Johns.    K.  214  ;   conGrmcd,  89. 


SECT.  XI.]  MATTERS    OF   IMPLIED   WARRANTY.  333 

to  State,  in  the  first  instance,  any  facts  which  only  affect  the  sea- 
worthiness of  the  ship. 

The  owner  of  goods,  insured  from  Madeira  to  Charleston,  had, 
the  day  before  effecting  the  policy,  received  a  letter  from  the  cap- 
tain, at  Madeira,  staling  that  "  the  ship  was  very  leaky,  and  that 
ten  pipes  of  wine  had  been  half  covered  with  water,"  of  which  he 
did  not  inform  the  underwriter,  who,  on  that  account,  refused  to 
pay  a  loss.  Lord  Mansfield  told  the  jury,  "that  there  should  be 
a  representation  of  every  thing  relating  to  the  risk,  except  it  be 
covered  by  a  warranty.  It  is  a  condition  or  implied  warranty  in 
every  policy,  that  the  ship  is  seaworthy,  and  therefore  there  need 
be  no  representation  of  that."  ^ 

In  case  of  insurance  on  a  ship  at  and  from  Trinidad  to  London, 
the  owners  had  received  a  letter  from  the  captain,  in  the  West 
Indies,  stating  that  "the  ship  was  in  very  good  order,  but  that  he 
had  had  a  survey  on  her,  on  account  of  her  bad  character,"  of  which 
they  did  not  inform  the  underwriter.  The  jury  found,  that,  if  this 
letter  had  been  disclosed,  it  would  have  varied  the  premium,  even 
if  the  survey,  which  was  very  favorable  to  the  character  of  the 
vessel,  had  been  laid  before  the  underwriter  at  the  same  time  ;  for 
it  was  said  by  some  of  the  witnesses,  that  surveys  made  in  the 
West  Indies  were  of  very  little  authority. 

Lord  Ellenborough,  giving  the  opinion  of  the  court,  said  :  "  Is 
it  then  to  be  laid  down  as  a  principle,  that  every  fact  known  to 
the  assured,  with  respect  to  the  condition,  quality,  and  circum- 
stances of  the  ship,  prior  to  the  period  of  effecting  the  insurance, 
which  may  possibly  guide  the  judgment  of  the  underwriter  in  un- 
dertaking or  refusing  to  undertake  the  insurance,  is  to  be  commu- 
nicated to  him  ?  It  would  certainly  have  some  weight  in  guiding 
the  judgment  of  an  underwriter  on  such  a  subject,  to  know  how 
old  the  ship  was,  where  she  was  built,  whether  originally  British 
or  foreign,  what  was  the  form  of  her  construction,  whether  clinker- 
built  or  not,  whether  copper-bottomed  or  not,  what  repairs  she  had 
received,  and  when  and  in  what  docks  those  repairs  were  done, 

1  Shoolbred  ?-.Nutt,  Park,  346  ;  and  Johns.  214 ;  2  Cowen,  56  ;  supra,  No. 
see  De  Wolff.  Firemens'  Ins.  Co.,  20     600. 


334  REPRESENTATION   AND    CONCEALMENT.         [CHAP.  VII. 

and  if  the  voyage  were,  as  this  was,  a  voyage  home,  what  acci- 
dents the  ship  had  met  with  in  her  outward  voyage.  All  this  may 
be  very  convenient  and  proper  for  the  insurer  to  be  informed  of, 
and  all  this  he  may  ask  of  the  assured  ;  and  if  the  assured  should 
withhold,  upon  being  asked  for  it,  any  material  part  of  such  re- 
quired information,  his  policy  could  not  be  sustained  for  a  moment." 
It  was  held  not  to  be  a  concealment.^ 

Under  a  policy  on  a  vessel  from  Belfast,  in  Ireland,  to  Lisbon, 
and  thence  to  New  York,  the  assured  had  notice  of  a  draft  upon 
him  by  the  master  for  expenses  at  Havana,  where  he  put  in,  as  he 
alleged  for  water,  on  his  prior  passage  from  New  Orleans  to  Bel- 
fast, which  the  owners  had  refused  to  pay,  on  the  ground  that  the 
expenses  were  unnecessary.  They  had  also  been  informed  that 
the  vessel  had  received  damage  at  Cork,  where  it  put  in  on  the 
previous  passage  to  Belfast,  and  the  persons  there  acting  as  agents 
for  the  vessel  had  written,  that  they  feared  the  captain  "was  care- 
less of  his  business,  and  his  amount  of  repairs  and  expenses  would 
astonish  them  all."  They  had  been  informed  that  his  detention 
there  was  very  great,  "yet  he  seemed  very  easy  under  it."  The 
assured  had  also  written  to  their  Liverpool  correspondent,  that 
"the  information  confirmed  their  apprehensions  as  to  Captain  C.'s 
conduct."     None  of  these  circumstances  were  disclosed. 

This  was  held,  however,  not  to  be  a  concealment,  for  the  reason 
that  the  facts  suppressed  had  reference  to  the  seaworthiness  of  the 
vessel,  which  was  warranted  by  the  assured,  and  at  their  risk,  and 
not  at  the  risk  of  the  underwriters.'^ 

602.  If  the  assured,  prior  to  effecting  a  policy,  discloses  a 
fact,  or  an  intention  to  do  any  act,  not  inconsistent  with  the  ex- 
press provisions  of  the  policy,  but  which,  if  not  disclosed,  would 
he  a  violation  of  a  warranty  implied  by  the  fact  of  making  the 
insurance,  but  not  by  the  obvious  and  necessary  construction  of 
the  language  of  the  policy,  the  underwriters  are  hound  hy  such 
representation,  and  the  policy  is  valid  notwithstanding  such  fact. 


'  Haywood  t'.  Tiodgcrs,  4  East,  590;        2  ■\y allien  t,.  N.  Y.  Firemens'  Ins. 
and  see  Dennis  v.  Ludlow,  2  Caines,     Co.,  12  Johns.  128, 
111. 


SECT.  XI.]  MATTERS   OF  IMPLIED   WARRANTY.  335 

or  the  execution  of  such  intention,  provided  the  case  is  free  from 
illegality. 

This  proposition  is  applicable  to  the  representation  of  an  inten- 
tion to  vary  from  a  usage,  a  conformity  to  which  is  not  explicitly 
requisite  by  the  express  provisions  of  the  policy. 

If  the  intention  or  fact  is  irreconcilable  with  the  explicit  terms 
of  the  policy,  it  is  not  the  case  now  in  question  ;  but  one,  the  rule 
applicable  to  which  has  been  already  laid  down.^ 

The  above  proposition  has  not,  that  I  am  aware  of,  been  expli- 
citly engrafted  into  the  English  or  American  jurisprudence,  and 
must  therefore  depend  upon  the  reasons,  analogies,  implications, 
and  inferences  that  can  be  brought  to  its  support. 

The  difficulty  of  the  question  arises  from  the  circumstance,  that 
usages  and  implied  warranties  are  part  of  the  policy,  and  no  prin- 
ciple of  the  law  is  more  firmly  established  and  more  decidedly 
fundamental,  than  the  principle  that  a  written  contract  cannot  be 
superseded  by  words  spoken.  Oral  testimony  is  admissible  of 
what  has  been  done  in  satisfaction  of  a  written  contract,  but  not 
of  what  it  requires  to  be  done.  The  whole  proof  must,  in  the  first 
place,  go  to  the  construction  of  the  writing ;  that  is  to  say,  it  must 
go  only  to  the  intention  of  the  parties  thereby  signified.  Accord- 
ingly, since  usages  and  implied  warranties  are  said  to  be  included 
in,  and  to  constitute  part  of,  the  contract,  the  doubt  is,  whether 
preliminary  and  simultaneous  collateral  statements  can  be  intro- 
duced by  way  of  coming  at  the  intention  and  mutual  understand- 
ing of  the  parties. 

We  may,  I  think,  lay  it  down  as  an  axiom,  if  not  as  a  corollary, 
on  this  subject,  that,  where  the  assured  is  bound  by  a  representa- 
tion, the  underwriter  is  bound  by  notice  of  it.  It  is  a  fundamental 
principle  in  contracts,  that  we  are  to  impute  to  each  party  a  know- 
ledge of  what  the  contract  requires  of  the  other.  Now  we  have 
already  seen  it  to  be  incorporated  into  this  branch  of  jurisprudence, 
that,  though  the  assured  is  not  bound  to  make  any  representation 
relative  to  the  subject  of  any  implied  warranty,  yet  if  he  is  inquired 
of,  he  must  make  true  answers,  or  the  policy  will  be  void.'-^     If  he 

1  Supra,  No.  120.  2  Supra,  No.  586,  600. 


336  REPRESENTATION   AND    CONCEALMENT.         [CHAP.  VII. 

is  bound  by  such  representations,  then,  e  converso,  the  underwriter 
is  bound  by  notice  of  them  when  made.  The  contrary  is  a  plain 
inconsistency. 

Another  rule  of  representation  and  concealment  covers  the  case. 
The  parties,  as  we  have  seen,  are  both  subject  to  the  rules  relative 
to  representation  and  concealment.  When,  therefore,  the  assured 
has  stated  a  material  fact,  or  an  intention  to  do  a  material  act  not 
inconsistent  with  the  provisions  of  the  policy,  a  knowledge  of  this 
is  as  plainly  imputable  to  the  underwriter  as  that  of  usages  and  all 
the  other  facts  which,  as  already  said,  he  is  bound  to  know.^  By 
then  proceeding  and  making  the  contract  without  any  explicit  pro- 
vision as  to  such  fact  or  purpose,  and  receiving  the  premium,  he 
by  the  plainest  implication  concedes  the  fact  or  the  execution  of 
the  intention.  It  is  a  plain  fraud  on  his  part  subsequently  to  deny 
his  assent. 

The  doctrine  in  question  was  expressly  recognized  by  Lord 
Kenyon,  and  Ashhurst  and  Grove,  Justices,  and  not  disclaimed, 
though  not  asserted,  by  Lawrence,  J.,  in  the  case  before  stated,  of 
the  vessel  being  ordered  to  go  by  the  northern  route  to  Jamaica  ;2 
for  the  three  first-named  judges,  following  the  ruling  of  Lord  Ken- 
yon to  the  jury,  put  the  decision  wholly  upon  the  non-disclosure 
of  the  order.  That  is,  in  effect,  saying  that,  if  the  assured  had 
made  known  the  order  to  take  that  route,  the  insurers  would  have 
been  liable  for  the  loss.  In  other  words,  the  obligation  by  usage 
to  leave  the  election  of  the  route  to  the  exercise  of  the  captain's 
discretion  at  the  dividing  point,  would  have  been  superseded  and 
cancelled  by  a  disclosure  of  an  intention  to  take  away,  or  the  fact 
that  the  ship-owner  had  taken  away,  that  discretion. 

I  accordingly  conclude  that  where  there  is  no  question  of  legal- 
ity, or  fraud,  and  the  assured  states  a  material  fact  touching  either 
of  the  warranties  of  the  connnencement  of  the  voyage  within  a 
reasonable  time,  the  route  or  manner  of  prosecuting  it,  the  sea- 
worthiness of  the  ship,  or  of  neutral  character  and  of  conduct, 
treated  of  in  the  next  chapter,  assuming  that  the  warranty  is  im- 
plied merely  by  the  fact  of  making  the  insurance,  and  not  specifi- 

1  Supra,  s.  C,  No.  571,  and  s.  8.         3  Midcllcwood  v.  Blakcs,  7  T.  R.  162. 


SECT.  XII.]    WHAT   INTELLIGENCE   MUST    BE    COMMUNICATED.       337 

cally  by  the  phraseology  of  the  policy,  such  implied  warranty  is 
subject  to  the  representation. 


SECTION    XII.       WHAT    KINDS    OF    INTELLIGENCE    MUST    BE    COMMU- 
NICATED. 

603.  The  assured  is  not  required  to  communicate  to  the  under- 
writers intelligence  knoum,  or  presumed  from  the  circumstances, 
to  he  known  to  them,  in  whatever  way  they  may  have  been  in- 
formed. 

604.  The  question  whether  intelligence  is  known  to  the  insur- 
ers otherivise  than  from  the  assured,  is  for  the  jury. ^ 

As  far  as  material  facts  are  derived  from  newspapers  and  other 
channels  of  public  intelligence,  the  question  arises  as  to  what  spe- 
cies of  publication  shall  be  presumed  to  be  within  the  knowledge 
of  the  underwriter. 

605.  Facts  known  at  the  office  or  place  of  business  of  either 
party  to  the  policy,  are  primd  facie  presumed  to  he  known  to 
him. 

It  has  been  held  in  England,  that  intelligence  posted  up  in  the 
inner  room  at  Lloyd's  Coffee  House  is  prima  facie  presumed  to  be 
known  to  London  underwriters  who  frequent  that  office. 

At  the  time  of  insuring  the  ship  Lusitania  from  the  Brazils  to 
Lisbon,  it  was  communicated  that  she  had  been  out  fifty-seven 
days,  but  the  assured  did  not  inform  the  underwriters  that  The 
Victorioso,  which  sailed  in  company  with  his  ship,  had  arrived  at 
Lisbon.  This  circumstance  had  however  been  published  in  the 
list  of  arrivals  at  Lloyd's,  where  the  policy  was  effected.  Bur- 
rough,  J.:  "The  arrival  of  the  other  vessel  must  be  presumed 
within  the  knowledge  of  the  underwriters,  from  the  circumstance 
of  its  being  contained  in  Lloyd's  printed  lists."  A  special  jury 
of  merchants  concurred  in  this  opinion.^ 

1  Friere  v.  Woodhouse,  1  Holt,  572  ;        2  Friere  v.  Woodhouse,  1  Holt,  572. 
Elton  17.  Larkins,  5  Car.  &  P.  86,  385  ;     See  also  Elton  v.  Larklns,  8  Bing.  198  ; 
8  Bing.  198  ;  Green  v.  Merchants'  Ins.     S.  C,  5  C  &  P.  86,  385. 
Co.,  10  Pick.  402  ;  and  see  cases  gene- 
rally. 

VOL.  I.  29 


338  REPRESENTATION   AND    CONCEALMENT.  [CIIAP.  VII. 

But  though  the  shipping-list  at  Lloyd's  is  prima  facie  evidence 
of  facts  being  known  to  the  underwriters  at  that  office,  yet  where 
the  assured  made  a  false  representation  of  the  time  of  a  vessel's 
sailing,  the  underwriter  was  held  not  to  be  bound  by  the  intelli- 
gence in  the  shipping-list  to  the  effect  of  rendering  the  false  repre- 
sentation immaterial.^ 

So,  also,  facts  known  to  an  officer  of  an  insurance  company 
having  charge  of  its  business,  are  presumed  to  be  known  to  the 
company.^ 

606.  The  insurers  are  not  conclusively  presumed  to  hnow  all 
the  marine  intelligence  published  in  the  newspajjers  taken  in  their 
own  office,  or  yuhlished  in  the  place  ivhtre  it  is  kept. 

On  the  question  whether  information  of  the  time  of  a  vessel's 
sailing,  given  in  the  marine  intelligence  of  a  New  York  newspaper, 
taken  at  the  office  of  an  insurance  company  in  New  Bedford, 
might,  from  the  evidence,  have  been  rightly  found  by  the  jury  to 
have  been  known  to  the  president,  Mr.  C.  J.  Shaw,  said,  in  giv- 
ing the  opinion  of  the  court  against  a  new  trial  :  "  It  may  be  very 
true  that  underwriters  are  not,  under  all  circumstances,  to  be  pre- 
sumed to  be  acquainted  with  all  the  intelligence  contained  in  the 
papers  taken  at  their  office.  But  the  general  presumption  is,  that 
the  agents  of  the  office  will  examine  with  some  care  those  items  of 
marine  intelligence  which  are  expressly  designetl  speedily  to  dif- 
fuse information  upon  a  subject  so  immediately  interesting  to  them, 
especially  in  relation  to  vessels  belonging  to  their  own  port."  ^ 

It  having  been  admitted  by  the  president  of  an  insurance  com- 
pany, that  he  knew  of  the  arrival  of  a  certain  vessel  at  a  distant 
port,  the  arrival  of  which  had  been  mentioned  in  the  marine  intel- 
ligence of  a  newspaper  published  at  such  port,  and  taken  at  the 
office  of  the  company,  this  was  held  sufficient  ground  for  admitting 
evidence  of  the  news,  brought  by  the  vessel,  of  the  time  of  sailing 
of  another,  published  in  the  marine  intelligence  of  the  same  news- 


•  Mackintosh  v.  Marshall,  11  Mces.        3  Green  v.  Merchants'  Ins.  Co.,  10 
&WcIs.  110.  rick.  402. 

2  Iliniely  i'.  Soiitli  Carolina  Ins.  Co., 
1  S.  C.  11. 151.     Sec  same  case  supra. 


SECT.  XII.]     WHAT  INTELLIGENCE  MUST  BE  COMMUNICATED.  339 

paper,  that  the  jury  might  infer  that  the  president  knew  of  the 
sailing  of  such  vessel,  there  not  appearing  to  be  any  other  way  of 
his  being  informed  of  the  arrival  of  the  vessel.  U  he  had  thus 
known  of  the  time  of  sailing  of  the  other  vessel,  this  excused  the 
assured  from  representing  that  fact.^ 

Insurance  was  made  in  New  York  on  the  "sloop  Friendship, 
from  Washington,  in  North  Carolina,  to  Charleston,  in  South  Caro- 
lina." A  newspaper  of  the  19th  of  April,  taken  at  the  office  of 
the  insurers,  contained  intelligence  that  "a  New  York  sloop, 
bound  from  Wilmington,  in  North  Carolina,  to  Charleston,  in 
South  Carolina,  had  been  stranded  on  Ocracoke  Bar."  On  ac- 
count of  this  intelligence,  the  risk  was  refused  at  one  office  on  the 
20th  of  April,  and  afterwards  on  the  same  day  the  assured  applied 
for  the  policy  in  question,  without  disclosing  this  intelligence  ;  and 
the  policy  was  held  to  be  void.^ 

607.  Intelligence  by  letter  or  report  of  cruisers  hovering  near 
must  be  communicated.^ 

In  effecting  insurance,  on  the  24th  of  March,  upon  life  privateer 
Hazard,  from  the  6th  of  that  month,  for  two  months,  the  broker 
omitted  to  disclose,  that  on  the  8th  and  9th  of  March  there  were 
reports  in  Jersey,  whence  The  Hazard  had  sailed  on  the  6th,  that 
some  French  frigates  were  about  the  coast ;  that  a  capture  had 
been  made  on  the  7th  ;  and  that  on  the  latter  day  a  ship's  bin- 
nacle had  been  afloat  on  which  was  a  compass  of  a  particular 
construction.  Gibbs,  C.  J.,  said:  "Loose  rumors,  which  have 
gathered  together  no  one  knows  how,  need  not  be  communicated. 
In  the  present  case  the  reports  cannot  be  called  loose.  He 
thought  they  were  such  intelligence  as  ought  to  have  been  com- 
municated.'* 

608.  A  concealment  of  information  or  rumors  material  if  true, 
will  defeat  the  contract,  though  they  turn  out  not  to  be  true.^ 

609.  The  assured  is  bound  to  disclose  intelligence,  though  of 
a  doubtful  nature,  respecting  facts  material  to  the  risk. 

1  Green  v.  Merchants'  Ins.  Co.,  10  3  Beekwaite  t'.  Nalgrove,  1  Holt, 
Pick.  402.  288,  n. ;  S.  C,  3  Taunt.  41. 

2  Dickenson  v.  Commercial  Ins.  Co.         ^  Durell  v.  Bederley,  1  Holt,  283. 
of  N.  Y.,  Anthon's  Case  at  N.  P.  92.        5  Lynch  v.  Hamilton,  3  Taunt.  37. 


340  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  VII. 

The  assured  had  an  account  that  a  ship  described  like  his  was 
taken  ;  and  he  effected  insurance  without  disclosing  this  intelli- 
gence. Lord  Macclesfield  said  :  "  The  assured  has  not  dealt 
fairly  ;  he  ought  to  have  disclosed  what  intelligence  he  had  of  the 
ship's  being  in  danger,  which  might  induce  him  to  fear,  at  least, 
that  it  was  lost."     The  policy  was  accordingly  held  to  be  void.^ 

Where  the  assured  on  The  Aurora,  of  Hartford,  had  heard  of 
the  wreck  of  a  vessel,  the  name  of  which  as  was  reported  to  the 
person  who  saw  the  wreck,  was  The  Debora,  of  Hartford,  and 
they  described  the  vessel  to  be  of  a  different  form  from  The  Aurora  ; 
and  the  underwriters  in  New  York  had  refused  to  underwrite  The 
Aurora,  on  account  of  this  news,  and  the  assured  obtained  insur- 
ance in  Boston  without  disclosing  the  intelligence,  the  policy  was 
held  to  be  void.^ 

610.  Intelligence  may  be  of  so  general  and  indefinite  a  nature, 
and  its  application  to  the  subject  insured  so  doubtful  and  remote, 
that  the  assured  need  not  communicate  it,  though  it  may  possibly 
relate  to  the  subject  insured. 

The  assured,  who  resided  at  Newport,  Rhode  Island,  procured 
insurance  in  Boston,  on  the  9th  of  February,  1824,  on  the  sloop 
Harriet,  "lost  or  not  lost,  from  Newport,  Rhode  Island,  to  all  ports 
and  places  to  which  she  might  proceed  in  the  United  States,  for 
six  months,  beginning  on  the  12th  of  January,  1824,  and  $600  on 
her  cargo  from  Newport  to  Charleston  or  Savanna,  or  both."  On 
the  12th  of  January  the  sloop  had  sailed  from  Newport,  and  on 
the  I9th  of  that  month  she  was  totally  lost  on  Cape  Hatteras,  but 
the  owner  had  not,  at  the  time  of  making  insurance,  heard  of  the 
loss.  In  the  New  York  newspapers  of  the  3d  of  February,  and 
one  of  the  Boston  newspapers  of  the  6th,  it  was  stated,  that  "a 
sloop  from  the  northward  was  cast  away  on  the  night  of  the  26th 
ultimo  (January)  at  Ocracock.  The  crew  abandoned  her  on  the 
same  night.  The  wind  shifted,  and  she  was  blown  off  to  sea. 
Nothing  could  be  seen  of  her  the  next  morning."     The  question 


'  Da  Costa  v.  Scandrct,  2  P.  W.     Suff.,  June,  1799;  Dane's  Abr.,  title 
1  70  ;  2  Ivj.  Cas.  Abr.  GS'J,  pi.  2.  Concealment. 

-  Burr  I".  Foster,  .S.  J.  C.  of  Mass., 


SECT.  XII.]     AVIIAT  INTELLIGENCE  MUST  BE  COMMUNICATED.  341 

was  made,  whether,  supposing  the  assured  to  have  seen  this  news, 
he  was  bound  to  communicate  it  to  the  underwriters. 

Mr.  Justice  Story  instructed  the  jury,  that  "  tliese  were  pubhc 
facts  open  to  both  parties.  Why  was  the  assured  bound  to  com- 
municate these  facts  ?  '  A  sloop  from  the  northward,'  is  so  gene- 
ral, that  though  it  might  excite  fears,  could  lead  to  no  particular 
application  of  the  loss.  Both  parties  might  well  have  presumed 
that  the  sloop  on  the  26th  was  beyond  the  place  where  the  loss  is 
stated  to  have  happened."  ^ 

611.  The  condition  of  goods  insured,  as  to  their  being  damaged, 
need  not  he  disclosed,  for  the  insurer  does  not  insure  against  prior 
damage,  however  it  may  have  occured. 

In  case  of  a  policy  on  hemp,  the  insurer  undertook  to  prove  that 
the  hemp  was  put  on  board  in  a  damaged  state,  and  objected  to 
the  validity  of  the  policy  on  the  ground  that  this  circumstance  was 
not  disclosed  to  him,  alleging  that  hemp  put  on  board  in  a  damaged 
state  was  liable  to  effervesce  and  take  fire.  Lord  Ellenborough  : 
"  I  must  positively  say,  that  the  assured  were  not  bound  to  repre- 
sent to  the  underwriters  the  state  of  the  goods.  It  would  intro- 
duce endless  confusion  and  perpetual  controversies  if  such  a  duty 
were  imposed  upon  the  assured."^ 

612.  Extraordinary  steps,  and  the  exercise  of  extraordinary 
vigilance  to  obtain  intelligence  respecting  an  absent  ship,  are  not 
requisite. 

A  London  broker,  having  finished  filling  up  a  policy  which  he 
had  begun  to  fill  up  four  days  before,  left  his  house  at  about  ten 
o'clock,  and,  without  calling  at  his  own  ofSce,  went  to  the  Ex- 
change with  the  policy,  where  the  underwriter  subscribed  at  about 
eleven  o'clock,  and  on  afterwards  going  to  his  office,  where  his 
letters  were  usually  left,  he  found  one  informing  him  of  the  cap- 
ture of  the  ship.  Sir  J.  Mansfield,  C.  J. :  "  It  is  somewhat  mate- 
rial that  the  policy  was  begun  a  day  or  two  before  the  insurer 
signed  it."     A  verdict  for  the  assured  was  acquiesced  in  by  the 


1  Kuggles  V.  General  Interest  Ins.  Alsop  v.  Commercial  Ins.  Co.,  1  Sum- 
Co.,  4  Mason,  74.     See  also  Green  v.  ner's  K.  451. 
Merchants'  Ins.  Co.,  10  Pick.  402,  and  2  Boyd  v.  Dubois,  3  Camp.  133. 
29* 


342  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  VII. 

court,  there  being  no  evidence  that  the  broker  had  any  reason  to 
presume  that  he  had  not  possession  of  all  the  information  concern- 
ing the  ship.i 

Where  intelhgence  relative  to  an  application  for  insurance,  com- 
municated by  a  member  of  a  firm,  then  in  New  York,  in  a  post- 
script to  a  letter  addressed  to  his  wife  in  New  Bedford,  to  be  com- 
municated to  his  partner  in  the  latter  place,  that  he  might  represent 
it  to  the  insurance  company,  was  not  put  into  the  hands  of  the 
latter  until  after  the  policy  had  been  written,  the  delay  having 
happened  through  the  forgetfulness  of  a  third  person,  who  took 
the  letter  from  the  vessel  by  which  it  was  sent,  Mr.  Justice  Morton 
instructed  the  jury,  that  if  the  communication  of  it  "had  not  been 
delayed  fraudulently,  by  the  circuitous  direction  of  it,  It  was  imma- 
terial." 2 

613.  If  the  time  of  the  vessel's  sailing  or  being  spoTcen  is  mate- 
rial to  the  estimate  of  the  risk,  it  must  be  represented?  And  so 
also  of  the  national  character  of  the  subject.'^ 

614.  The  applicant  or  broker,  having  applied  or  given  instruc- 
tions to  apply  for  a  policy,  is  bound  to  disclose  subsequent  know- 
ledge or  intelligence  of  a  loss,  or  countermand  the  order,  if  in 
time.^ 

SECTION    XIII.       THE    TIME    OF    SAILING,    OR    BEING    SPOKEN. 

615.  The  assured  or  his  broker,  who  effects  a  policy,  is  bound 
to  disclose  his  intelligence  or  knowledge  of  the  time  of  the  vesseVs 
having  sailed,  or  being  expected  to  sail,  or  being  spoken,  where 
it  affords  any  ground  for  supposing  it  to  be  out  of  time,  or  will 
be  long  detained,^  but  not  if  it  affords  no  such  ground.' 

1  Wake  V.  Atty,  4  Taunt.  493.  ingston  v.  Delafield,  3  Caines,  49  ;  Kay 

2  Green  v.  Merchants'  Ins.  Co.,  10  v.  Young,  Millar's  Ins.  G2  ;  Johnson  v. 
Pick.  402.  Phoenix  Ins.  Co.,  1  Wash.  C.  C.  R. 

3  Vide  infra,  s.  13.  378  ;  M'Lanahan  v.  Universal  Ins.  Co., 

4  A'idc  infra,  s.  14.  1  Pcters's  Sup.  Ct.  R.  170. 

5  Vide  supra,  s.  3.  7  Littlcdale  v.  Kenyon,  4  B.  &  P. 
6M'Andrewsu.  Bell,  lEsp.R.  373;     151;   Foley  v.  Moline,  1  Marsh.  R. 

Webster  v.   Foster,  1  Esp.  R.  407;     117;  S.  C,  5  Taunt.  430. 
Willis  V.  Glover,  4  B.  &  P.  11 ;  Liv- 


SECT.  XIII.]      THE  TIME  OF  SAILING,  OR  BEING  SPOKEN.  343 

616.  If  the  time  of  sailing  be  incorrectly  represented,  so  as  to 
induce  the  underwriters  to  sujjpose  that  the  vessel  is  not  out  of 
time,  when  in  fact  she  is  so,  the  policy  will  not  bind  the  under- 
writers.^ 

617.  In  determining  whether  there  is  a  concealment  of  the  fact 
of  the  vessel  being  out  of  time,  the  ivhole  representation  and  all 
the  circumstances  must  be  taken  together. 

Where  it  was  stated  by  the  assured,  that  a  ship  that  had  arrived 
at  a  neighboring  port  had  sailed  after  the  ship  insured,  the  not  stat- 
ing the  date  of  the  arrival,  was  held  by  Mr.  Justice  Story  not  to  be 
material,  on  the  grounds,  that  the  time  of  the  sailing  of  the  vessel 
insured  was  stated  to  have  been  three  days  earlier  than  the  actual 
time  ;  that  the  time  of  the  arrival  of  the  other  vessel  was  stated  in 
a  newspaper  taken  at  the  office  of  the  underwriters  ;  and  that  by 
the  representation  made  the  insurers  were  put  upon  inquiry,  and 
were  bound  to  have  asked  for  the  time  of  arrival  of  that  vessel,  if 
they  desired  to  be  informed.^ 

618.  A  policy  at  and  from  a  place  imports  of  itself  that  the 
vessel  is  there,  or  soon  will  be  there,  and  ready  to  sail.-^ 

619.  The  circumstance  that  the  vessel  is  not  ready  to  sail  imme- 
diately, may  not  be  material  to  the  risk,  and  if  it  is  not  so  it  need 
not  be  stated. 

At  the  time  of  effecting  a  policy,  on  the  19th  of  June,  a  vessel 
insured  from  Pictou,  in  Nova  Scotia,  to  Liverpool,  had  received 
damage  on  the  outward  voyage,  and  stood  in  need  of  great  repairs, 
v/hich  it  was  known  would  detain  her  at  Pictou  for  some  time. 
This  was  not  communicated  to  the  underwriters.  Lord  Ellen- 
borough  remarked  to  the  jury,  that  it  was  not  necessary  to  state 
that  repairs  were  necessary  in  all  cases  where  they  were  so.'^ 
This  must  evidently  depend  upon  the  probable  time  of  the  deten- 
tion, and  whether  the  risks  of  the  voyage  would  be  thereby  aggra- 
vated by  its  falling  in  a  different  season  of  the  year. 

1  Roberts  v.  Fonnereau,  Park,  285  ;  Co.  and  Phoenix  Ins.  Co.  v.  Bathurst, 
M'Lanahan  v.  Universal  Ins.  Co.,  1     5  Gill  &  Johns.  159. 

Peters's  Sup.  Ct.  R.  170.  3  Hull  v.  Cooper,  14  East,  479. 

2  Alsop  V.  Commercial  Ins.  Co.,  1  4  Beckwith  v.  Sidebotham,  1  Camp. 
Sumner,  451.    See  also  Maryland  Ins.     116. 


344  REPRESENTATION   AND    CONCEALMENT.         [CIIAP.  VII. 

In  a  case  upon  a  policy  on  a  vessel  from  Plymouth  to  Bristol, 
the  broker,  who  had  instructions  that  the  vessel  was  ready  to  sail 
on  the  24th  of  December,  represented  that  she  was  in  port  on  that 
day,  whereas  she  had  sailed  on  the  23d.  Lord  Mansfield  said  : 
"This  was  a  material  concealment  and  misrepresentation."^ 

The  same  judge  gave  a  similar  instruction  to  the  jury  in  another 
similar  case.^ 

620.  The  importance  of  any  error  in  stating  the  time  of  the 
vesseVs  sailing  ivill  depend  on  the  length  of  the  voyage,  and  other 
circumstances.  A  difference  of  a  few  days  will  make  a  vessel  out 
of  time  in  a  short  voyage,  and  yet  would  be  of  small  account  in  a 
long  one. 

In  the  case  of  a  policy  on  a  vessel  from  Boston  to  Surinam,  it 
was  represented  to  the  insurers  in  New  York,  that  she  had  been 
out  about  nine  weeks,  whereas  she  had  in  fact  been  out  ten  weeks 
and  four  days,  yet  the  jury  found  a  verdict  in  favor  of  the  assured, 
on  the  ground  that,  if  the  fact  had  been  correctly  stated,  it  would 
not  have  shown  the  vessel  to  be  out  of  time,  and  accordingly 
would  not  have  given  the  insurers  any  reason  to  refuse  the  risk.^ 

In  effecting  a  policy  upon  a  vessel  from  Cape  St.  Francois  to 
Baltimore,  the  assured  made  the  following  representation  :  "I  have 
information  of  the  vessel's  sailing,  and  she  has  been  out  twenty- 
six  days."  She  had  been  out  twenty-seven  days,  and  the  under- 
writers objected  to  paying  the  loss,  on  the  ground  that  this  was  a 
misrepresentation,  and  also  because  the  assured  had  not  disclosed 
that  another  vessel  had  sailed  after  his,  and  arrived.  The  jury 
found  a  verdict  in  favor  of  the  assured,  not  deeming  the  difference 
of  a  day  material  in  that  voyage.  The  court  would  not  set  aside 
the  verdict.  As  to  the  other  objection,  they  said  that  the  insurers 
must  know  that  another  vessel  had  arrived  that  sailed  after  the  one 
insured,  otherwise  the  information  of  her  time  of  sailing  could  not 
have  been  received.* 

1  Fillia  V.  Brutton,  Tark,  292.  4  Williams  v.  Delafield,  2  Caiucs, 

2  llatcliffe  V.  Shoolbrcd,  Park  Ins.     329. 
290. 

3  Blackay  v.  llhinclander,  1  Johns. 
Cas.  4U8. 


SECT.  XIII.]      THE  TIME  OF  SAILING,  OR  BEING  SPOKEN.  345 

The  assured  had  received  letters  from  the  master  of  the  ship  at 
St.  Domingo,  by  which  he  was  informed  that  she  would  be  ready 
to  sail  for  France  between  the  5th  and  10th  of  October.  It  was 
represented  to  the  insurers,  that  the  ship  would  sail  in  October. 
It  was  the  opinion  of  the  witnesses,  and  seems  to  have  been  that 
of  Lord  Kenyon,  that  this  was  not  a  fair  and  full  disclosure  of  the 
intelligence.! 

So  a  representation  that  the  ship  was  expected  to  be  loaded  be- 
tween the  13th  and  20th  of  September,  when  she  was  known  to 
have  been  loaded  on  the  13th,  was  held  in  Scotland  to  be  a  mis- 
representation.2 

A  statement  that  the  ship  would  sail  in  a  certain  month  may, 
under  the  circumstances,  mean  merely  that  she  is  expected  to  sail 
in  that  month.  In  written  proposals  for  insurance  at  Baltimore, 
in  May,  1820,  on  the  cargo  of  the  brig  Eugenee,  from  Rio  de  La 
Plata  to  Havana,  the  party  applying  stated,  that  the  "brig  would 
sail  from  La  Plata  in  the  course  of  this  month."  She  in  fact  did 
not  sail  from  Monte  Video  until  the  1 2th  of  July.  A  loss  occur- 
ring, the  underwriters  objected  that  this  was  a  misrepresentation. 
The  court,  considering  the  voyage,  the  distance  of  the  proposed 
port  of  departure  from  the  place  where  the  policy  was  made,  and 
the  situation  of  the  parties  at  the  time,  construed  this  statement  to 
be  only  the  expression  of  an  opinion  and  expectation,  and  not  as 
a  representation  upon  the  supposed  literal  accuracy  of  which  the 
contract  was  made.  "A  future  event  was  spoken  of  in  its  nature 
contingent,  and  of  which  the  party  speaking  could  not  possibly 
possess  any  certain  knowledge." 

The  fact  that  the  statement  was  made  by  the  owner  of  the 
cargo,  who  was  not  an  owner  of  the  vessel,  and  could  have  no 
control  of  her  time  of  sailing,  was  considered  of  importance  as 
affecting  the  construction.  There  was  no  evidence  that  the  dif- 
ference of  lime  was  material  to  the  risk.  The  court,  however, 
said,  that,  if  the  difference  in  time  of  sailing  had  been  material  to 


1  Chauraud  v.  Angerstein,  Peake,        2  Stewart  v.  Morrison,  Millar's  Ins. 
C.  N.  P.  43.  59. 


346  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  VII. 

the  risk,  the  statement  would  not  have  affected  the  policy  ;  and  it 
was  accordingly  held  not  to  be  a  misrepresentation.^ 

The  master  wrote  to  the  assured  that  he  should  sail  "  on  the 
12th;"  the  assured  represented  to  the  underwriters  that  the  ves- 
sel was  to  sail  "about  the  12th."  This  was  held  not  to  be  a  mis- 
representation.2 

A  statement  by  the  assured,  on  the  4th  of  January,  that  the 
ship  did  not  sail  on  the  voyage  insured,  from  Belfast,  in  Ireland, 
to  New  Orleans,  before  the  18th  of  October,  when  in  fact  she 
sailed  on  the  6th  of  that  month,  the  usual  passage  being  fifty  or 
fifty-five  days,  was  held  to  be  a  misrepresentation  that  defeated 
the  policy.^ 

At  the  time  of  effecting  a  policy,  November  I2th,  "on  wines  on 
board  The  Stag,  from  Oporto  to  Liverpool,"  a  part  of  the  pre- 
mium to  be  returned  for  convoy,  the  assured  did  not  disclose  either 
of  two  letters,  received  October  30th,  from  his  correspondents  at 
Oporto,  one  of  the  11th  of  the  same  month,  saying,  "  We  are  load- 
ing the  wines  on  The  Stag,  Captain  Wheatley,  who  pretends  to 
sail  after  to-morrow,"  the  other  of  the  13th,  by  which  it  appeared 
that  she  was  to  sail  with  convoy.  The  convoy  with  which  she 
proposed  to  sail  had  arrived  on  the  30th  of  October,  and  The  Stag 
was  not  included  in  the  list  of  ships  entered  at  Lloyd's  as  having 
sailed  with  convoy.  Lord  Ellenborough  said:  "The  letter  of  the 
11th  would  have  made  known  to  the  insurer  the  captain's  intended 
time  of  sailing  ;  that  of  the  13th,  that  the  lading  was  completed, 
and  she  was  ready  to  sail  ;  he  would  have  found  that  the  convoy 
had  arrived  without  her,  and  from  that  circumstance  must  have 
inferred  a  disappointment  in  the  original  intention  of  the  parties  ; 
I  cannot  help  thinking  these  letters  were  material."  Le  Blanc,  J., 
thought  that  the  facts,  if  disclosed,  would  have  shown  that  the 
ship  was  a  missing  ship.^ 

1  Allcn;rc's  Adm'rs  i'.  [Maryland  Ins.  ~  Rice  v.  N.  E.  Marine  Ins.  Co.,  4 

Co.,  2  Gill  &  Johns.  13G.     The  court  Pick.  439. 

cited  in  favor  of  the  decision,  Rice  v.  3  Curell  v.  Miss.  ]\Iar.  &  Fire  Ins. 

New  England  Lis.  Co.,  4  Tick.  439,  Co.,  9  La.  R.  163. 

and  as  leaniiij^  against  it,  Lillic  v.  De-  ^  Bridges  v.  Hunter,  1  M.  &  S.  15. 
nison,  3  Bligb,  220. 


SECT.  XIII.]      THE  TIME  OF  SAILING,  OR  BEING  SPOKEN.  347 

A  policy  on  a  ship  at  and  from  Malaga  to  London  was  made 
in  London,  November  3d.  The  assured  represented  that  she  had 
been  spoken  off  St.  Vincent,  October  14th,  by  the  F.,  which  had 
arrived  at  London  October  30th,  but  omitted  to  state  that  she  had 
spoken  the  same  vessel  off  Oporto  on  the  21st  of  October,  and 
parted  company  in  a  storm.  Lord  Abinger,  C.  B.,  deemed  this 
omission  immaterial,  as  it  would  have  only  shown  that  she  had 
performed  the  most  dangerous  part  of  the  voyage.  But  the  Court 
of  Exchequer  decided  in  favor  of  putting  the  question  to  the  jury.^ 

621.  The  fact  that  the  ship  has  sailed  before  the  policy  is 
effected,  is  not  necessarily  material. 

Where  the  policy  was  on  a  ship  at  and  from  London,  lost  or 
not  lost,  for  a  certain  voyage,  and  the  fact  that  she  had  already 
sailed  was  not  disclosed,  the  court  said,  "  If  the  underwriter 
wanted  to  know  whether  the  ship  had  sailed,  he  ought  to  have 
inquired."  2 

622.  It  is  not  usually  necessary  in  a  retrospective  insurance  to 
malce  Txnown  to  the  insurers  that  the  vessel  is  a  fast  sailer.  If 
the  assured  gives  the  vessel  so  favorable  a  character,  that  the  un- 
derwriters may  infer  that  she  is  a  fast  sailer,  this  will  at  least  ren- 
der any  specific  statement  of  the  fact  unnecessary.-^ 

The  sailing  qualities  of  the  vessel  may  evidently  be  material  in 
a  retrospective  insurance  in  reference  to  its  being  out  of  time  ; 
but  it  must  be  the  case  of  an  extraordinary  vessel,  and  of  nicely 
balanced  circumstances,  to  render  it  obligatory  on  the  applicant  to 
make  such  a  statement  in  the  first  instance,  though  he  will  be 
bound  to  make  true  replies  to  inquiries. 

623.  Whether  a  strict  compliance  with  a  representation  of  the 
time  of  sailing  is  requisite  ?  * 


1  Westerbury  v.  Aberdein,  2  M.  &        3  Ruggles  v.  General  Interest  Ins. 
W.  267.  Co.,  4  Mason,  74. 

2  Fort  V.  Lee,  3  Taunt.  381.     See         4  See  infra,  s.  19. 
also  Fiske  v.  N,  E.  Marine  Ins.  Co., 

15  Pick.  310;  Elton  v.  Larkins,  5  C. 
&P.  385;  8  Biug.  198. 


348  REPRESENTATION   AND   CONCEALMENT.  [CHAP.  VII. 


SECTION    XIV.       NATIONAL    CHARACTER    AND    BELLIGERENT    RISK. 

624.  The  assured  must  disclose,  if  Imown  to  him  or  he  is 
hound  to  know,  and  not  hiioivn  to  the  underwriter,  Jjy  the  provi- 
sions of  the  policy  or  otherwise,  or  presumed  to  he  so,  that  the 
interest  insured,  whether  in  the  ship  or  goods,  is  belligerent ; 

Or  that  other  goods  hy  the  same  ship  are  helligerent ; 

Or  that  the  goods  insured  are  contraband  of  war ; 

Or  that  he  or  any  other  shipper  has  shipped  other  goods  that 
are  contraband  of  war  ; 

Or  that  it  is  intended  to  violate  a  blockade  ; 

Or  that  any  other  circumstance  will  expose  the  insured  pro- 
perty to  capture,  seizure,  confiscation,  or  detention,  hy  a  hellige- 
rent. 

As  in  case  of  the  property  belonging  to  a  house  established  in  a 
belligerent  country,  and  so  being  of  a  decidedly  belligerent  cha- 
racter.^ 

Mr.  Justice  Washington  remarks,  that  where,  by  "  the  esta- 
blished adjudications  of  belligerent  courts  not  generally  known, 
any  circumstances  become  grounds  of  condemnation,  though  in 
opposition  to  the  law  of  nations,  those  circumstances,  if  known  to 
the  assured,  ought  to  be  disclosed."  ^ 

625.  Circumstances  affecting  the  risk  during  war,  that  are 
known  to  the  insurers,  need  not  be  represented.^ 

Underwriters  may  be  bound  by  the  course  of  the  trade  at  the 
particular  time,  without  any  representation  on  the  subject,  to  take 
notice  that  belligerent  property  in  disguise  will  be  on  board  of  a 
vessel.* 

Insurers  are  presumed  to  have  a  knowledge  of  public  transac- 
tions,^ and  of  the  state  of  the  world,  of  the  allegiance  of  particular 


1  Bauduy  v.  Union  Ins.  Co.,  2  Wash.  ^  Maryland  &  Phoenix  Ins.  Co.,  v. 
C.  C.  K.  3'Jl.  liatluirst,  5  Gill  v.  Jolins.  159. 

2  Marshall  V.Union  Ins.  Co.,  2  Wash.  ^  Per  AVashington,  J.,  in  Kohne  v. 
C.  C.  R.  3.')  7.  Ins.  Co.  of  North  America,  1  Wash. 

3  Bownc  V.  Shaw,  1  Caincs,  489.  C.  C.  R.  93. 


SECT.  XIV.]    NATIONAL  CHARACTER  AND  BELLIGERENT  RISK.         349 

countries,  of  the  risks  and  embarrassments  affecting  their  com- 
merce, and  of  the  course  and  incidents  of  the  trade ;  ^  and  these, 
accordingly,  need  not  be  stated  by  the  assured,  as  affecting  the 
marine  perils  both  to  belligerents  and  neutrals. 

Where  goods,  the  produce  of  a  belligerent  Spanish  colony,  and 
brought  thence  by  a  belligerent  to  the  United  States,  and  there 
sold,  were  insured  thence  to  Spain  warranted  neutral,  Mr.  Justice 
Washington  was  of  opinion  that  the  fact  of  their  being  the  produce 
of  such  colony  need  not  be  disclosed.  He  thought  the  assured 
was  not  bound  to  anticipate  every  possible  ground  of  suspicion.^ 

Two  policies  were  effected  in  Baltimore,  insuring  B.  St  K.  for 
whom  it  might  concern,  on  a  cargo  from  Porto  Rico  to  Baltimore, 
Porto  Rico  being  then  in  a  state  of  revolt  and  war  with  Spain. 
The  insurances  were  on  the  order  of  F.,  an  American  then  at 
Porto  Rico,  in  whose  name  the  cargo  was  shipped,  and  to  whom 
it  was  consigned.  Nothing  was  said  of  the  ownership  on  making 
the  first  policy.  On  applying  for  the  second,  a  letter  from  F. 
was  exhibited,  saying,  "When  I  wrote,  I  could  not  say  what 
amount  of  cargo  to  have  insured  for  me ;  I  now  think  I  shall  have 
on  board  $8,000,  which  amount  I  wish  to  have  insured  for  me." 
A  part  of  the  cargo  belonged  to  a  resident  in  Porto  Rico,  who 
came  passenger  in  the  vessel.  The  property  was  lost  by  perils  of 
the  seas. 

The  underwriters  objected  to  payment,  on  the  ground  of  con- 
cealment of  the  part-ownership  of  the  Spanish  subject.  A  verdict 
being  given  in  favor  of  the  assured  on  both  policies,  the  Supreme 
Court  of  the  United  States  refused  upon  two  grounds  to  set  it 
aside,  namely:  —  ist,  that  in  the  then  state  of  Porto  Rico,  the 
underwriters  were  presumed  to  know  that  property  from  that 
island,  belonging  to  persons  residing  there,  was  ordinarily  shipped 
in  the  name  of  a  neutral,  and  the  correspondence  relating  to  it 
would  so  represent  it,  because  it  was  exposed  to  be  overhauled  by 


1  Per  Johnson,  J.,  giving  the  opi-         2  Marshall  v.  Union  Ins.  Co.,  2  Wash, 
nion  of  the  Supreme  Court  in  Buck     C.  C.  R.  357. 
and  Hendrick  v.  Chesapeake  Ins.  Co., 
1  Peters's  Sup.  Ct.  R.  151. 

VOL.  I.  30 


350  REPRESENTATION   AND    CONCEALMENT.  [CUAP.  VII. 

cruisers  ;  and  2cl,  that  as  the  policy  was  in  a  form  to  cover  the 
property  of  a  belligerent,  the  underwriters  were,  under  the  circum- 
stances, bound  to  have  made  inquiry,  if  they  proposed  to  exclude 
such  a  risk.i 

Goods  insured  from  Newport  to  Passage,  in  Spain,  had  been 
brought  from  La  Guira,  then  a  belligerent  colony,  and  not  un- 
loaded in  the  United  States,  and  so  were  at  the  time  more  liable 
to  capture  as  Spanish.  Mr.  Justice  Washington  was  of  opinion, 
that  the  omission  to  disclose  this  fact  was  a  concealment  that 
vitiated  the  policy,  though  many  cargoes  had  been  carried  in  the 
same  way.^ 

Where  the  policy  on  the  ship  was  against  "all  risks,"  and  con- 
tained no  warranty  of  neutrality,  and  a  letter  from  the  master  was 
shown  to  the  underwriters,  stating  that  he  had  chartered  the  ship 
in  England  to  go  "to  one  of  the  following  ports  in  the  Columbian 
government,  —  La  Guira,  Santa  Martha,  or  Carthagena  ;"  it  was 
held  that  the  underwriters  were  thus  sufficiently  apprised  that  the 
ship  might  have  been  chartered  by  an  agent  of  a  Spanish  South 
American  government,  to  carry  out  warlike  supplies,  that  being  a 
great  part  of  the  ordinary  transportation  on  such  a  voyage  at  the 
time,  and  there  being  at  the  time  no  full  cargo  carried  by  a  ship 
of  the  size  of  the  one  insured,  that  did  not  consist  wholly  or  partly 
of  such  articles.^ 

If  the  property  is  accompanied  by  a  letter  of  instructions  expos- 
ing it  to  capture  and  condemnation,  according  to  the  well-known 
decisions  of  a  foreign  court  of  admiralty,  Mr.  Justice  Washington 
was  of  opinion  that  the  circumstance  should  be  made  known, 
"and  it  was  immaterial  whether  those  decisions  were  consistent 
with  the  law  of  nations  or  not,  as  the  danger  of  capture  was  the 
same."  '^ 

626.  If  the  ship  or  cargo  is  represented  to  he  neutral,  it  must 


'  Buck  and  Kendrick  v.  Chesapeake  ^  Maryland  and  Phoenix  Ins.  Co.  v. 

Ins.  Co.,  1  Peters's  Sup.  Ct.  R.  151.  Bathurst,  5  Gill  &  Johns.  159. 

2  Kolinc  V.  Ins.  Co.  of  North  Anie-  "i  Sperry  v.  Delaware  Ins.  Co.,  2 

rica,  1  Wash.  C.  C.  11.  93  ;  G  Binn.  Wash.  C.  C.  II.  243. 
219. 


SECT.  XIV.]    NATIONAL  CnARACTER  AND  BELLIGERENT  RISK.         351 

be  oivned  by  neutrals,  and  be  accompanied  by  documents  and  insig- 
nia as  such,  and  be  managed  as  such.^ 

627.  The  national  character  of  the  property  is  generally  a  sub- 
ject of  warranty,  and  not  of  representation,  but  if  the  national 
character  of  the  assured  is  not  knoivn  to  the  insurers,  and  is  such 
as  to  expose  the  property  to  more  than  ordinary  danger  of  capture^ 
it  must  be  disclosed? 

It  has  been  held  that  the  interest  of  a  subject  of  a  belligerent 
country,  as  cestui  que  trust,  in  a  ship  insured  in  the  name  of  a 
neutral,  must  be  disclosed.^ 

It  was  held  in  New  York,  that  the  assured  in  a  policy  effected 
in  that  State  was  not  bound  to  disclose  that  he  had  emigrated  from 
France  to  the  United  States  during  a  war  then  pending  between 
France  and  England.^  But  this  is  inconsistent  with  the  cases 
above  cited,  and  with  the  fundamental  doctrine  relative  to  repre- 
sentation of  the  belligerent  character  or  insignia  of  property  appa- 
rently neutral.  The  case  is  supposed  to  be  one  where  the  assured 
is  apparently  a  neutral,  for  if  the  underwriter  knows  him  to  be  a 
belligerent,  or,  which  is  the  same,  to  have  emigrated  from  a  belli- 
gerent country  during  the  war,  there  is  no  room  left  for  a  question 
about  representation.  If,  therefore,  from  the  circumstances  he  is 
liable  to  be  taken  for  a  neutral,  and  is  so  taken,  it  is  a  palpable 
case  of  concealment,  or  implied  misrepresentation.  A  decision  by 
the  English  K.  B.  in  an  analogous  case  is  directly  opposed  to 
those  last  referred  to.  A  ship  and  cargo  being  insured  in  England 
from  that  country  to  the  United  States,  against  all  risks,  "  American 
capture  or  seizure  included,"  the  broker  omitted  to  disclose  that 
the  property  belonged  to  Americans.  Chief  Justice  Abbott  said, 
"An  American  subject,  to  whom  a  ship  and  goods  are  consigned 


1  Vandenlieuvel  v.  United  Ins.  Co.,        3  Murray  v.  United  Ins.  Co.,  2  Johns. 
2  Johns.  Cas.451 ;  Same  v.  Church,  id.     Cas.  168. 

173,  n.;  Steel  v.  Lacy,  3  Taunt.  285  ;  4  Duguet  v.  Rhinelander,  1  Caines's 
Fisher  v.  Ogle,  1  Camp.  418  ;  Von  Cas.  in  Err.  xxv.;  2  Johns.  Cas.  476. 
Tugeln  V.  Dubois,  2  Camp.  151.  But  see  1  Johns.  Cas.  360. 

2  Campbell  v.  Innes,  4  B.  &  A.  423. 
But  see  Hodgson  v.  Marine  Ins.  Co., 
6  Cranch,  100. 


352  REPRESENTATIOX   AND    CONCEALMENT.         [CHAP.  VII. 

in  America,  if  he  knows  that  he  is  insured  against  American  cap- 
ture and  seizure,  may  not  only  omit  to  take  proper  means  to  pre- 
vent loss,  but  may  possibly  facilitate  it  by  giving  information  to 
his  own  government  upon  the  subject."  The  policy  was  accord- 
ingly held  to  be  void,  on  the  ground  that  the  insurers  ought  to 
have  been  informed  that  the  property  belonged  to  Americans.^ 

628.  Under  an  insurance  on  "  all  lawful  goods,^^  an  assured  is 
not  required  to  disclose  that  the  goods  are  contraband.^ 

Much  less  is  the  master  of  a  vessel,  who  is  insured  on  his  com- 
missions on  "lawful  goods,"  required  to  disclose  that  contraband 
goods  are  shipped  by  others  in  the  vessel.^ 

6:29.  The  owner  of  a  neutral  vessel,  A'noiciiig  that  she  takes 
belligerent  goods  disguised  as  neutral,  is  bound  to  disclose  the  fact 
in  effecting  a  policy.'^ 

630.  The  assured  on  a  neutral  ship  is  not  bound  to  disclose 
that  the  su_percaigo  is  a  belligerent,  unless  he  himself  knoics  that 
by  an  ordinance  or  the  practice  of  the  other  belligerent  country 
this  will  subject  the  ship  to  condemnation. 

As  in  case  of  a  Portuguese  neutral  ship  having  an  English 
supercargo,  England  and  France  being  then  at  war.^ 

631.  A  representation  that  the  assured  on  a  ship  icishes  to  be 
covered  against  all  risk,  including  contraband,  is  not  necessarily 
an  implied  representation  that  it  is  neutral,  but  may  be  merely  an 
expression  of  desire  to  be  covered  against  the  risk  of  contraband, 
in  case  the  vessel  should  be  neutral  and  should  have  contraband 
goods  on  board. ^ 

632.  Where  the  law  requires  registered  ships  not  to  sail  with- 
out convoy,  the  assured  need  not  state,  unless  inquiry  is  made, 
that  the  vessel  is  not  registered,  and  so  may  sail  without  convoy.'' 


>  Campbell  c.  Innes,  4  B.  &  A.  423.  5  Mayne  v.  Walter,  Doug.  79. 

2  Seton  I'.  Low,  1  Johns.  Cas.  1  •,  Ju-  ^  Maryland  lus.  Co.  and  Phoenix  Ins. 
hel  r.  Ilhinclander,  2  Johns.  Cas.  120  ;  Co.  i".  Bathurst,  5  Gill  &  Johns.  159 ; 
Rbinelandcr  v.  Juhel,  id.  487.  supra,  Xo.  625. 

3  Depcyster  r.  Gardner,  1  Gaines's  "  Long  v.  Duff,  and  Same  r.  Bolton, 
R.  492.  2  B.  &  P.  209. 

<  Stockcr  I'.  Mercantile  Fire  &  Mar. 
Ins.  Co.,  C  Mass.  11.  220. 


SECT.  XV.]  IN   INSURANCE   AGAINST   FIRE.  353 

633.  Where  the  broker  was  informed  by  the  owner  of  the  goods 
insured  from  Bristol  to  INIahon,  that  the  ship  "was  to  have  gone 
to  Fahnouth  to  join  convoy,  but  he  supposed  the  wind  was  con- 
trary and  she  could  not  fetch  the  port,  but  he  knew  nothing  about 
it  himself,"  but  did  not  disclose  this  circumstance  to  the  insurers, 
though  he  knew  it  to  be  a  fact  that  the  vessel  had  sailed  without 
convoy ;  this  was  held  to  be  a  material  concealment.^ 

634.  Whether  the  non-communication  of  a  fact  affecting  the 
belligerent  risk  defeats  the  policy,  or  only  excepts  the  risk  r^ 


SECTION  XV.       REPRESENTATION  AND  CONCEALMENT  IN  INSURANCE 
AGAINST    FIRE. 

635.  It  has  been  suggested  that  there  is  a  difference  between 
marine  and  fire  insurance,  in  respect  of  the  obligation  to  make 
disclosures  of  facts  not  inquired  about.^  The  difference  is  not, 
however,  I  apprehend,  so  much  one  of  doctrine  as  of  the  subject- 
matter,  and  of  the  degree  of  confidence  necessarily  placed  in  the 
assured  by  the  underwriter.  The  subject  of  a  fire  policy  is  usually 
stationary,  and  the  risk  local,  and  within  the  limits  of  actual 
inspection  by  the  insurers  or  their  agents.  The  circumstances 
affecting  the  degree  of  risk  are,  accordingly,  less  various  and 
numerous,  and  more  within  the  insurer's  actual  or  possible  know- 
ledge. And,  besides,  the  inquiries  put  to  the  assured,  his  answers 
to  which  are  usually  referred  to  in  the  policy,  are  intended  by  the 
insurer  to  cover,  and  usually  do  actually  cover,  all  the  circum- 
stances affecting  the  risk  material  to  be  disclosed. 

Any  circumstance  evidently  and  materially  enhancing  the  risk 
of  fire,  Jcnown  to  the  applicant  at  the  time  of  insuring,'^  and  not 
so,  or  presumed  to  be  so,  to  the  insurer,  and  of  which  he  is  not 
bound  to  inform  himself  or  to  take  the  risk  of  it,  77iust  be  disclosed, 
though  no  inquiry  is  made  respecting  it. 

Thus,  where  a  part  of  the  insured  premises  was  occupied  for 

1  Sawtell  V.  Loudon,  5  Taunt.  359  ;  3  Burritt  v.  Saratoga  Mut.  Ins.  Co., 
S.  C,  1  Marsh.  R.  99.  5  Hill,  188. 

2  Vide  infra,  s.  20.  4  pim  v.  Keid,  6  Mann.  &  Gr.  1. 

30* 


354  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  VII. 

gambling,  and  the  insurers  suggested,  as  an  objectio^lhe  vicinity 
of  the  premises  to  another  gambling  establishment,  it  was  held  in 
Louisiana,  that,  if  the  risk  was,  in  the  opinion  of  the  jury,  mate- 
rially aggravated  by  such  occupancy  of  a  part  of  the  premises,  it 
was  obligatory  on  the  applicant  to  have  represented  the  fact,  and 
the  suppressing  of  it  would  defeat  the  policy.^ 

In  this  case,  what  passed  between  the  parties  suggested  this 
disclosure  to  the  applicant,  which  strengthened  the  obligation  to 
make  a  representation  of  the  fact,  if  there  was  any  ground  to  sup- 
pose the  risk  to  be  enhanced  by  that  kind  of  occupancy. 

The  proposition  is  stated,  in  giving  the  opinion  of  the  Supreme 
Court  of  the  United  States,  that,  if  the  mode  of  occupying  a  room 
in  a  factory  varies  from  the  ordinary  practice,  and  is  such  as  the 
insurers  were  not  bound  to  presume  in  such  a  building  as  the  one 
described,  and  is  such  as  materially  to  enhance  the  risk,  the  assured 
is  bound  to  disclose  it,  and,  if  he  neglects  to  do  so,  the  policy 
will  be  void.2 

A  Louisiana  case  is  an  appropriate  illustration  of  the  proposition 
just  stated,  in  which  the  assured  suppressed  the  fact  of  a  rumor  of 
an  attempt  to  set  fire  to  a  ropewalk  next  to  the  one  he  proposed 
for  insurance,  whereupon  his  policy  was  adjudged  to  be  void.^ 

A  person  resident  at  Heligoland  wrote  on  Saturday,  the  11th  of 
July,  to  the  directors  of  an  insurance  company  in  England,  for 
insurance  "on  a  warehouse  situated  in  the  town  of  Heligoland," 
not  stating  that  it  was  separated  only  by  one  other  building  from 
another  warehouse,  which  had  been  on  fire  the  day  when  he  wrote. 
The  fire  was  supposed  to  have  been  extinguished  by  eight  o'clock 
in  the  evening,  but  it  was  considered  to  be  necessary  to  watch  the 
premises  during  the  night.  The  fire  broke  out  again  on  the  Mon- 
day n)orning  following,  and  consumed,  among  other  buildings,  the 
warehouse  insured.  This  was  considered  to  be  a  material  con- 
cealment.^ 


1  Lyon  r.  Commercial  Ins.  Co.,  2  3  "Waklcn  v.  Louisiana  Ins.  Co.,  1 2 
Rob.  (La.)  R.  2GG.  La.  R.  134. 

2  Clark  r.  Manufacturers'  Ins.  Co.,  ^  Bufe  v.  Turner,  2  Marsh.  R.  4G ; 
8  Howard,  235.  6  Taunt.  338. 


SECT.  XV.]  IN   INSURANCE    AGAINST   FIRE.  355 

Mr.  Justice  Putnam  charged  the  jury,  in  respect  to  a  threat 
alleo-ed  to  have  been  made  by  a  convict  in  the  state-prison,  that, 
on  getting  out,  he  would  set  fire  to  a  house,  that,  if  under  the  cir- 
cumstances they  considered  that  the  risk  of  fire  was  thereby  mate- 
rially increased,  the  omission  to  disclose  the  fact  of  the  threat  to 
the  underwriters,  at  the  time  of  effecting  the  policy  on  the  house, 
was  a  material  concealment,  and  avoided  the  insurance.^ 

So  in  all  the  cases  cited  below,  respecting  the  disclosure  of  a 
qualified,  temporary,  or  defeasible  title,  where  no  inquiry  is  made 
touching  the  title,  it  is  expressly  stated,  that,  if  this  had  materially 
enhanced  the  risk,  the  suppression  of  it  would  have  defeated  the 
insurance. 

636.  In  general,  the  use  made  of  a  building,  and  how  it  is 
heated,  need  not  he  represented,  except  in  reply  to  inquiries.- 

Where  the  rules  of  a  fire  office  made  a  distinction  between  the 
premiums  on  inns  and  other  buildings,  a  building  used  as  a  coffee- 
house, in  London,  was  insured  without  being  described,  or  pay- 
ment of  premium  for  it,  as  an  inn.  Lord  EUenborough  :  "  I  think 
a  coffee-house  is  not  an  'inn,'  within  the  meaning  of  the  policy. 
Horses,  wagons,  and  coaches  come  to  an  inn  ;  there  are  stables 
and  out-houses  attached  to  it ;  people  are  going  to  them  at  all 
hours.  Hence  the  trade  of  an  innkeeper  is  considered  doubly 
hazardous ;  but  the  trade  of  a  coffee-house  keeper  is  of  a  very  dif- 
ferent description."^ 

A  representation  that  an  apparatus  was  put  up  in  the  proposed 
building  for  burning  anthracite  coal,  does  not  restrain  the  assured 
to  such  fuel,  nor  require  that  he  should  use  it.^ 

637.  Companies  that  insure  against  fire  usually  adopt  certain 
rules  respecting  representations,  or  put  certain  inquiries  requiring 
the  assured  to  make  known  of  what  materials  a  building  proposed 
to  be  insured  is  constructed,  for  what  purpose  it  is  occupied,  and 
what  kind  of  buildings  are  situated  near  to  it ;  whether  the  goods 


1  Curry  v.  Commonwealth  Ins.  Co.,  3  j)oe  ex  dem.  Pitt  v.  Lansing,  4 
10  Pick.  535.  Camp.  76. 

2  Clark  V.  Manufacturers'  Ins.  Co.,  ^  Tillon  v.  Kingston  Mut.  Ins.  Co., 
8  Howard,  235.  7  Barb.  570. 


356  EEPRESEXTATION   AND    COXCEALMEXT.  [CHAP.  VII. 

proposed  for  insurance  are  held  in  trust  ;  what  kind  of  goods  they 
are  ;  the  description  and  situation  of  the  building  in  which  they 
are  stored,  and  other  circumstances  showing  the  degree  of  risk.^ 

These  rides  and  regulations  are  usuaJIy  brought  home  to  the 
Jcnoivledge  of  the  assured,  and  made  binding  upon  him,  by  some 
questions  answered  by  him,  or  by  their  being  indorsed  on  the 
policy,  or  annexed  to  it,  and  referred  to  in  it.  A  delivery  of  the 
regulations  of  a  company  to  the  agent  of  the  assured,  affects  the 
latter  with  a  knowledge  of  them.^ 

638.  The  assured,  being  thus  informed  by  interrogatories  or 
otherwise  on  w  hat  matters  he  is  required  to  make  representations, 
is  accordingly  bound  to  mah'e  true  statements  of  the  facts  inquired 
about. 

The  answers  of  the  assured  to  inquiries  respecting  the  situation, 
condition,  use,  superintendence,  and  management  of  the  insured 
property,  if  construed  to  be  representations,  must  be  substantially 
true,  and  complied  %oith,  and  still  more  rigidly  and  exactly,  if  con- 
strued to  be  warranties. 

It  is  difficult  to  distinguish  in  this  and  many  other  cases,  what 
phraseology  makes  a  warranty,  from  what  is  only  a  representation, 
and  the  phraseology  which  will  make  either  from  what  is  only 
description  to  identify  the  subject  of  the  insurance.  And  when  a 
provision  has  been  construed  to  amount  to  a  warranty  or  to  be 
merely  a  representation,  it  still  is  difficult,  in  many  cases,  to  dis- 
tinguish what  is  a  "literally"  true,"^  or  strictly  accurate  statement 
of  the  facts,  from  one  that  is  only  substantially  true.'*  The  cases 
would  have  presented  fewer  difficulties  of  construction  if  the  early 
jurisprudence  had  been  less  open  to  the  admission  of  forfeitures  of 
the  policy,  and  more  easily  satisfied  with  a  compliance  with  written 
stipulations  substantially  equivalent  to  a  literal  one,  where  such  a 
construction  was  not  inconsistent  with  the  express  provisions  of  the 
contract.     The  recent  jurisprudence,  tends  to  greater  liberality  of 


1  Newcastle  Fire  Ins.  Co.  v.  Mac-  360;  Houghton  r.  Manufacturers' Ins. 
morran,  .3  Dow,  255.  Co.,  8  Mete.  K.  114. 

2  Ibid.  ■*  See  supra,  No.  669.  670,  et  seq. 

3  Blackhurst  r.  Cockrell,  3  T.  R. 


SECT.  XV.]  IN   INSURANCE   AGAINST   FIRE.  357 

construction  in  favor  of  maintaining  the  contract.  Such  a  rule 
may  be  as  well  applied  to  stipulations  and  recitals  in  the  policy, 
as  to  representations  preliminary  and  collateral  to  it ;  and  it  is  more 
equitable,  after  the  policy  has  once  gone  into  effect,  and  the  under- 
writer has  a  right  to  retain  the  premium,  that  the  contract  should  be 
continued  in  force  as  long  as  its  being  maintained  is  consistent  with 
its  express  provisions  and  the  underwriter  is  not  thereby  prejudiced. 
Even  where  the  assured  has  voluntarily  for  a  time  incurred  an 
extra  risk,  or  voluntarily  varied  or  increased  the  risks  insured 
against,  it  has  been  held,  in  some  cases,  that  he  has  not  thereby 
absolutely  forfeited  the  contract,  but  has  only  incurred  a  tempo- 
rary suspension  of  it,  or  that  he  must  himself  bear  the  extra  risk 
thus  unnecessarily  superinduced,  where  a  loss  thereby  can  be  dis- 
tinguished from  other  losses.^  The  principle  of  this  equitable  juris- 
prudence in  respect  to  the  consequences  of  some  cases  of  deviation, 
is  equally  applicable  to  warranties. 

The  distinction  of  warranties,  representations,  and  mere  descrip- 
tions, is  illustrated  by  the  jurisprudence  referred  to  under  all  those 
heads.^ 

Where  the  answers  of  the  applicant  were  referred  to  in  the 
policy  by  the  term  "representations,"  Shaw,  C.  J,,  and  his  asso- 
ciates, construed  them  to  be  only  such,  and  held  that  the  answer 
that  the  ashes  of  the  furnaces  of  a  factory  were  put  into  iron  ves- 
sels, was  complied  with  by  the  use  of  copper  or  other  equivalent 
vessels.^  And  so,  under  a  policy  on  a  dwelling-house,  the  same 
court  held  the  representation  that  the  ashes  were  kept  "  in  brick," 
was  complied  with  by  their  being  kept  in  copper  or  other  equiva- 
lent vessels."* 

So  in  Connecticut,  a  substantial  compliance  with  a  represent- 
ation of  the  watch  kept  and  the  hours  for  work  in  a  factory,  was 
held  to  be  sufficient. ^ 

1  Infra,  No.  734,  751,  975,  978.  *  Underhill  v.  Agawam  Mut.  Fire 

2  Supra,  No.  70,  71,  72,  485,  et  seq.     Ins.  Co.,  6  Cusliing's  R.  440. 

527,  553,  569,  575,  603  ;  infra,  No.        5  Glendale  Woollen  Co.  v.  Protec- 
640,  641,  652,  669,  670,  673,  674,  762,     tion  Ins.  Co.,  21  Conn.  R.  19. 
866,871,872,892. 

3  Houghton  V.  Manufacturers'  Mut. 
Fire  Ins.  Co.,  8  Mete.  R.  114. 


358  REPRESEXTATIOX   AND    COXCEALMENT.  [CHAP.  VII. 

So  a  policy,  being  on  merchandise  in  a  "stone  building,"  is  held 
by  Savage,  C.  J.,  and  his  associates,  to  impliedly  represent,  but 
not  warrant,  such  a  building,  and  to  be  applicable  and  valid, 
though  the  gable-ends  of  the  building  were  of  wood,  evidence 
being  given  that  it  was  as  safe  as  if  they  had  been  of  stone. ^ 

An  insured  building  being  described  in  the  application  found 
wafered  to  the  policy,  though  it  did  not  appear  by  whom,  to  be  a 
"steam  saw-mill  about  1.30  feet  long  and  30  broad,"  but  not,  as 
appears,  specifically  described  in  the  policy  itself,  was  in  fact  132 
feet  long,  and,  for  a  distance  of  forty  feet,  in  the  central  part  of 
its  length,  w^as  40  feet  wide,  including  in  that  distance  the  boiler- 
house  ten  feet  wide  and  ten  feet  hicfh,  attached  to  the  main  build- 
ing.  Mr.  Justice  Sutherland  gave  the  opinion  of  the  Supreme 
Court  of  New  York,  that  this  was  a  representation,  and  was  com- 
plied with,  this  manner  of  placing  the  boiler  being  stated  by  wit- 
nesses to  be  proper,  and  to  be  safer  than  putting  it  within  the  main 
building.^ 

638  a.  It  being  required  to  specify  what  buildings  are  ivithin 
a  certain  distance  from  the  one  insured,  or  in  which  goods  are 
insured,  the  applicant  must  answer  the  inquiry  ivith  strict  or  sub- 
stantial  accuracy,  according  as  the  case  is  one  of  representation  or 
warranty,  if  any  such  distinction  can  be  made  in  this  case,  it  not 
being  apparent  that  it  can  be. 

This  inquiry  is  usually  so  made  and  the  answer  so  referred  to  and 
the  provisions  of  the  policy  are  usually  such,  as  to  make  it  a  con- 
dition of  the  contract  that  a  strictly  correct  answer  shall  be  given. -^ 

The  requisition  of  a  statement  of  o^Acr  buildings  near  enough  to 
endanger  the  one  insured,  not  specifying  any  distance,  does  not 
extend  to  all  buildings  which  might  by  possibility  endanger  it,  but 

1  Snyder  r.  Farmers' Ins.  and  Loan  Saratoga  Mut.  Ins.  Co.,  5  id.  154; 
.Co.,  13  Wend.  R.  92.  Gates  v.  Madison  county  Mut.  Fire 

2  JefTcrson  Ins.  Co.  v.  Cotheal,  7  Ins.  Co.,  3  Barb.  73 ;  S.  C,  2  Comst. 
Wend.  11.  72.  43.     See  infra,  c.  9,  s.  10.    Objection 

3  See  Burrill  v.  Saratoga  county  on  account  of  the  insufficiency  of  the 
Mut.  Fire  Ins.  Co.,  5  Hill,  188 ;  French  answer  in  the  last  of  the  above  cited 
f.  Chenango  county  Mut.  Ins.  Co.,  7  cases  was  held  to  have  been  vraived. 
id.  122 ;  Jennings  v.  Chenango  county  See  infra,  No.  904. 

Mut.  Ins.  Co.,  2  Denio,  li> ;  Frost  r. 


SECT.  XV.]  IN   INSURANCE   AGAINST   FIRE.  359 

only  to  such   as  would  ordinarily  be  considered   as  having  that 
eifect.i 

639.  The  rule,  that  the  express  provisions  of  the  policy  cannot 
he  superseded  by  proof  of  a  representation,  is  appJicahle  in  fire 
as  well  as  marine  insurance. 

In  a  suit  on  a  fire  policy  upon  fixtures,  &c.,  in,  and  to  be  put 
into  buildings,  the  whole  value  of  which,  at  the  time  of  a  loss,  was 
^100,000,  the  underwriter  was  not  permitted  to  prove  that  the 
assured  represented,  at  the  time  of  making  the  policy,  that  their 
value  would  not  exceed  ^5,000. ~ 

640.  The  assured  need  not  state  that  his  interest  in  the  build- 
ing is  a  qualified,  or  conditional,  or  temporary  one,  unless  inquiries 
are  made  on  this  subject. 

As  in  case  of  the  assured  owning  but  half  of  the  insured  build- 
ing; 3 

Or  of  the  building  being  put  on  land  of  another  than  the  as- 
sured ;'^ 

Or  being  insured  by  the  assured  as  his  own,  his  interest  being 
an  undivided  moiet}'  belonging  to  his  wife,  in  which  he  had  a  life 
interest ;  ^ 

Or  being  insured  as  "his,"  the  assured's  "building,"  where  the 
interest  was  a  lease  for  one  year  ;^ 

Or  being  described  as  "his,"  the  assured's  "dwelling-house," 
which  was  then  being  built  on  land  that  he  had  absolutely  agreed 
to  purchase,  and  on  which  he  had  made  sundry  payments  on  his 
agreement ;  "^ 

Or  belonging  to  the  assured  only  as  mortgagee  :  ^ 


1  Dennison  v.  Thomaston  Mut.  Ins.  5  Curry  v.  Commonwealth  Ins.  Co., 
Co.,  20  Maine  R.  125.  10  Pick.  535. 

2  New  York  Gas-Light  Co.  v.  Me-  ^  Niblo  v.  North  American  Ins.  Co., 
chanics'  Fire  Ins.  Co.,  2  Hall's  R.  108.  1  Sandf.  N.  Y.  Sup.  Ct.  R.  551. 

See  also  Glendale  AVooUen  Co.  v.  Pro-  '  Tyler  v.  iEtna  Ins.  Co.,  1 2  Wend, 

tection  Ins.  Co.,  21  Conn.  R.  19.  507 ;  and  16  Wend.  385. 

^  Catron  v.  Tennessee  Ins.  Co.,  6  ^  Delahay  v.  Memphis  Ins.  Co.,  8 

Humphrey,  176.  Humphrey,  684. 

*  Fletcher  i'.  Commonwealth  Ins. 
Co.,  18  Pick.  419. 


360  EEPRESENTATION   AND    CONCEALMENT.         [CUAP.  VII. 

Or  being  mortgaged  by  the  assured,  and  the  assured's  equity  of 
redemption  being,  besides,  at  the  time,  seized  on  execution,  but  the 
interest  not  irrevocably  devested  before  the  time  of  the  loss  taking 
place.^ 

A  building  being  insured  as  property  "  belonging  to"  the  assured, 
being  "their  mill,"  which  stood  on  land  subject  to  a  ground-rent, 
and  the  title  being  partly  that  of  possession  under  a  mortgage,  and 
partly  subject  to  a  mortgage,  and  accordingly  defeasible,  the  not 
disclosing  of  the  tenure  was  held  by  the  Supreme  Court  of  the 
United  States  to  be  a  fatal  concealment,^  on  the  ground  that  the 
assured  has  not  the  same  motives  to  preserve  the  building  as  if  he 
were  an  absolute  owner.  This  seems  to  be  an  unsatisfactory 
ground,  for  if  his  interest  is  such  that  he  will  lose  the  amount  of 
the  insurance,  either  absolutely  or  out  of  his  collateral  security,  by 
the  destruction  of  the  insured  property,  he  has  quite  an  adequate 
motive  to  preserve  it.  He  is  authorized  to  insure  it  under  a  gene- 
ral description,^  which  seems  to  be  a  case  not  materially  different 
from  the  one  in  question,  assuming  that  no  specific  inquiry  is  put 
to  the  assured  respecting  the  title. 

641.  If  the  applicant  is  required  to  state  his  title  and  the  en- 
cumbrances on  a  building  proposed  for  insurance,  the  inquiry  is  not 
unfrequently  so  put,  and  the  answers  so  referred  to  in  the  policy, 
as  to  make  it  a  condition  that  they  shall  be  full  and  strictly  true,'^ 
but  the  answers  to  this  inquiry,  if  not  thus  made  warranties,  are 
merely  representations.^ 

Where  the  underwriters  are  by  their  charter  entitled  to  a  lien 
on  the  land  under  an  insured  building  to  secure  payment  of  pre- 
miums and  assessments,  it  is  material  that  the  party  insured  should 
himself  have  the  title  to  the  land,  or  at  least  an  interest  to  which 
the  lien  can  attach.     Accordingly,  in  such  cases,  if  the  assured  in 

1  Strong  r.  Manufacturers'  Ins.  Co.,         3  Supra,  No.  421. 

10  Pick.  40.  ^  Locke  v.  North  American  Ins.  Co., 

2  Columl>ian  Ins.  Co.  r.  Lawrence,     13  Mass.  R.  Gl. 

2  Tetcrs's   Sup.  Ct.  II.  25;  and  sec         5  Infra,  No.  G 72  a. 
Carpenter  v.  rrovidencc  AVashington 
Ins.  Co.,  IC  Tetcrs's  Sup.  Ct.  11.  495, 
to  the  same  effect. 


SECT.  XV.]  IN   INSURANCE   AGAINST   FIRE.  361 

his  representations,  erroneously  pretends  to  a  title  when  he  has 
none,  or  represents  his  title  to  be  better  than  it  is,  or  omits  to  state 
encumbrances  in  replying  to  inquiries  about  them,  the  policy  is 
void  for  misrepresentation  or  concealment. ^ 

It  is  held  in  Massachusetts,  that  the  policy  is  defeated  by  a  mis- 
representation that  the  building  is  free  from  encumbrance,  though 
the  underwriters  are  a  foreign  corporation,  and  can  have  no  lien 
on  the  real  estate.  The  ground  of  the  opinion  is  stated  to  be,  that 
the  fact  of  an  encumbrance  or  not,  is  material,  as  indicating  the 
responsibility  of  the  assured,  and  his  ability  to  meet  his  engagements 
to  the  company.^  Another,  and  apparently  better  ground,  is  that 
the  underwriters,  by  making  the  inquiry,  are  thereby  entitled  to 
have  it  considered  material,"^  since  the  inquiry  can  have  any  bear- 
ing and  relevancy  only  as  affecting  the  degree  of  risk,  and  must 
accordingly  be  considered  to  relate  to  that. 

A  policy  being  for  ^'4,000  on  a  factory  building,  dye-house, 
and  machinery,  "  to  cover  a  mortgage  on  said  property  to  same 
amount,  lot  included,"  Gibson,  C.  J.,  and  his  associates,  held,  that 
the  omission  to  represent  that  he  held  prior  mortgages  on  the  build- 
ing, was  a  concealment,  on  the  ground  that  the  salvage  was  thereby 
diminished.''  There  was,  however,  no  difficulty  on  this  account, 
since  the  deficiency  of  the  salvage  might  be  deducted  in  adjusting 
the  loss.^  There  being  no  inquiry  or  statement  as  to  prior  liens, 
the  contrary  ruling  by  the  judge  who  presided  at  the  trial  of  the 
case,  seems  to  be  the  better  construction  of  the  contract.*^ 

The  title  of  a  corporation  is  held  in  Ohio  not  to  authorize  a 


1  Smith  V.  Bowditch  Mut.  Fire  Ins.  fully,  infra,  No.  1 784.  The  insurance 
Co.,  6  Mete.  448.  company,  in  this  case,  claimed  indem- 

2  Davenport  v.  N.  E.  Mutual  Fire  nity  by  an  assignment  of  a  Hen  on  the 
Ins.  Co.,  G  Cushing's  R.  340 ;  Clark  v.  land  for  the  amount,  if  any,  which 
N.  E.  Mutual  Fire  Ins.  Co.,  id.  642.  they  were  liable  to  pay.     The  secre- 

3  Supra,  No.  586.  tary  of  the  company  who  took  the 

4  Smith  V.  Columbia  Insurance  Co.,  risk,  said  that  he  should  not  have 
17  Penn.  (5  Harris's)  R.  253.  taken  it  at  five  per  cent,  if  he  had 

5  Infra,  No.  1714.  known  of  the   prior  liens.     But  this 

6  Smith  V.  Columbia  Ins.  Co.,  1 7  testimony  seems  not  to  be  admissible, 
Penn.  (5  Harris's)  R.  253,  stated  more  or  of  weight,  if  so. 

VOL.    I.  31 


362  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  YII. 

representation  that  the  property  is  that  of  the  individuals  who 
compose  the  corporation.^ 

Oral  notice  of  a  mortgage  is  sufficient  compliance  with  a  require- 
ment that  it  should  be  stated.^ 

642.  The  description  of  a  building  or  other  subject  insured,  its 
situation,  and  statement  of  any  circumstance  connected  with  it,  and 
the  taking  out  of  the  policy  thereupon,  though  it  may  not  amount 
to  a  warranty,  is  not  only  an  express  representation  that  the  facts 
stated,  so  far  as  they  are  material  to  the  risk,  are  substantially  true 
at  the  time,  but,  also,  an  implied  promissory  representation  that  so 
far  as  they  are  of  a  nature  to  be  continued,  and  so  far  as  their 
being  continued  depends  upon  the  assured,  they  are  to  be  substan- 
tially true  during  the  period  of  the  risk ;  and  if  not  so,  the  policy 
will  be  forfeited,^  or  at  least  the  risk  will  be  suspended  :  ^ 

As  where  the  assured  erects  a  building  on  his  ground  represented 
to  be  vacant,  so  near  as  to  increase  the  danger  of  fire  :  ^ 

Or  under  a  statement  respecting  a  building  in  the  process  of 
being  built,  that  there  is  no  stove  in  it,  the  putting  of  one  in  any 
time  during  the  risk  :  ^ 

Or  not  continuing  to  keep  up,  to  all  material  purposes,  such  a 
watch  as  is  stated  to  be  kept  in  a  factory." 

An  immaterial  alteration  of  an  insured  building,  though  when 
altered  it  does  not  precisely  correspond  to  the  description  of  it  in 
the  representation,  will  not  cause  a  forfeiture  of  the  insurance.^ 

In  respect  to  a  life  as  well  as  a  marine  or  fire  insurance,^  the 
applicant  is  not   required   to  make   any  representation  of  a  fact 

1  Philips  V.  Knox  county  Mutual  "i  Glendale  "Woollen  Co.  v.  Protec- 
Ins.  Co.,  20  Ohio  R.  174.  lion  Ins.  Co.,  21  Conn.  K.  19.    A  doc- 

2  Masters  r.  Madison  county  Mutual  trine  different  from  that  above  stated 
Ins.  Co.,  1 1  Barb.  N.  Y.  Sup.  Ct.  11.  is  asserted  in  Beuham  v.  United  Guar- 
624.  anty  and  Life  Ass.  Co.,  14  Eng.  Law 

3  Supra,  No.  553.  &  Eq.  R.  (Press  of  Little,  Brown  & 
*  Infra,  No.  975.  Co.)  524  ;  S.  C,  16  Eng.  Jurist,  697. 

5  Stebbins  v.  Globe  Ins.  Co.,  2  Hall's  ^  Jefferson  Ins.  Co.  t'.  Cotheal,  7 
R.  632.  Wend.  72. 

6  Williams  r.  New  England  ]\Iut.  ^  Supra,  No.  600. 
Fire  Ins.  Co.,  31  Maine  (1  Redd.)  R. 

219. 


SECT.  XVI.]  IN   LIFE   INSURANCE.  363 

covered  by  an  express  warranty,  where  he  is  not  speci6cally  in- 
quired of  respecting  it.^ 


SECTION  XVI.       REPRESENTATION    AND    CONCEALMENT    IN    LIFE    IN- 
SURANCE. 

643.  The  same  general  principles  as  to  representation  and  con- 
cealment are  applicable  to  insurances  on  lives,  as  to  marine  and  fire 
policies. 

A  ruling  by  Lord  Mansfield  ~  is  reported  as  laying  down  the 
proposition,  that  the  life  is  at  the  risk  of  the  underwriters,  and  the 
policy  is  valid  provided  there  is  no  warranty  or  fraudulent  con- 
cealment or  misrepresentation. 

If  Lord  Mansfield  so  ruled,  it  must  have  been  in  reference  to 
the  particular  case  on  trial,  for  there  is  not,  that  I  am  aware  of, 
either  authority  or  reason  for  the  doctrine  that  a  life  policy  issued 
upon  a  misrepresentation  made  through  negligence  or  mistake,  is 
valid,  or  that  there  is,  in  this  respect,  any  distinction  between  a 
life  policy  and  a  marine  one. 

In  case  of  a  life  policy,  Mr.  Justice  Bull  ruled  in  a  trial  in  Ire- 
land, under  a  policy  expressed  to  be  issued  on  the  basis  of  the 
written  statements  of  the  applicant,  that  the  statements  were  to  be 
treated  as  representations,  and  a  substantial  compliance  was  suffi- 
cient ;  and  this  ruling  was  confirmed  by  Moore,  J.,  Lefroy,  B., 
Bull,  J.,  Perrin,  J.,  Torrens,  J.,  Pennafether,  B.,  and  Blackburne, 
C.  J.,  of  the  Irish  Court  of  Exchequer  ;  Jackson,  J.,  Pigot,  B., 
and  Monahan,  C.  J.,  dissenting.  On  appeal  to  the  House  of 
Lords,  Parke,  B,,  Piatt,  B.,  Alderson,  B.,  Martin,  B.,  Coleridge, 
J.,  Wightman,  J.,  Williams,  J.,  Erie,  J.,  Cresswell,  J.,  Talfourd, 
J.,  and  Crompton,  J.,  gave  opinions  unanimously,  that  the  policy 
was  void,  whether  the  false  facts  stated  by  the  assured  in  the  appli- 
cation were  material  or  not  material ;  that  is,  that  the  policy  was 
issued  on  condition  that  the  statements  were  true.  Lord  Chancel- 
lor Cranford  concurred  in  that  construction,  saying,  that  the  basis 


1  Ross  V.  Bradshaw,  1  AV.  Bl.  312. 

2  Stackpole  v.  Simon,  Marsh.  Ins.,  2d  ed.,  772. 


364  REPKESENTATION    AND    CONCEALMENT.  [CHAP.  VII. 

of  the  contract  was  that  the  applicant  should  make  true  answers 
to  the  inquiries  put,  "the  assured  must  adhere  to  his  warranty, 
whether  material  or  immaterial;"  and  the  judgment  below  was 
accordingly  reversed. ^ 

A  life  policy  issued  "upon  the  basis"  of  the  written  statement 
of  the  assured  in  his  application,  is  defeated  by  a  false  representa- 
tion of  his  health,  though  his  state  of  health  was  well  known  to 
the  agent  of  the  company  for  procuring  the  application,  who  was 
not,  however,  authorized  to  agree  for  a  policy.- 

644.  Insurance  on  lives,  like  that  against  fire,  has  usually,  if  not 
invariably,  been  made  upon  the  basis  of  ivritien  answers  to  written 
inquiries,  and  the  doctrine  already  stated  ^  respecting  the  stronger 
obligation  to  make  communication  where  an  inquiry  is  made,  per- 
vades the  jurisprudence  respecting  representation  and  concealment 
in  such  insurance  generally. 

645.  Most  of  the  inquiries  relate  to  particular  subjects,  which 
are  specified,  as  age,  residence,  state  of  health,  &;c. 

646.  Besides  the  particidar  inquiries,  there  is  usually  a  general 
one,  requiring  a  statement  of  any  other  circumstance  tending  to 
shorten  the  proposed  life,  or  which  ought  to  be  communicated  to 
the  underwriters.  This  general  inquiry  requires  only  what  the 
implied  condition  of  every  life  or  other  policy  requires,  as  to  repre- 
sentation.^ 

647.  The  assured  on  a  life  is  bound  to  make  a  true  and  full 
disclosure  of  all  material  facts  within  his  knowledge,  and  not 
known,  or  presumed  to  be  so,  to  the  insurers,  which  he  cannot  but 
Jcnow  would  induce  them  to  demand  a  higher  premium,  or  decline 
the  risJc,  though  no  inquiry  is  made  about  such  facts. ^ 

Where  the  broker  who  applied  for  the  policy  states,  that 
"from  the  account  he  has  received  the  life  is  a  good  one,"  and 
he  had  received  no  such  account,  Mr.  Marshall  is  of  opinion  that 

'  Anderson  v.  Fitzgerald,  Eng.  Law  4  Lindenau  v.  Desborough,  8  B.  & 

&  Eq.  K.  (Press  of  Little,  Brown  &  C.  58G  ;  Edwards  v.  Barrow,  Ellis's 

Co.)  ;  S.  C,  17  Eng.  Jurist,  995.  Lis.  116. 

2  Vose  V.  Eagl(!  Life  and  Ilcaltii  ^  Vose  v.  Eagle  Life  Lis.  Co.,  6 
Ins.  Co.,  G  Cusliing's  It.  42.  Cushing's  R.  42. 

3  No.  58G. 


SECT.  XVI.]  IN   LIFE   INSURANCE.  365 

the  policy  is  void,  though  the  broker,  at  the  same  time,  says  his 
principal  "  will  warrant  nothing  ; "  ^  and  of  this  there  seems 
to  be  no  ground  to  doubt.  It,  however,  would  be  difficult  to 
prove  such  a  misrepresentation  except  by  the  broker's  own  testi- 
mony. 

Though  the  subject  of  a  life  insurance  has  some  infirmity  which 
does  not,  however,  diminish  his  expectation  of  life,  he  need  not 
disclose  it,  if  not  inquired  about,  especially  if  it  comes  under  a  gene- 
ral warranty.- 

The  inquiry  whether  the  applicant  for  a  life  insurance  had  been 
"afflicted  with  pulmonary  complaints  or  consumption,"  being  an- 
swered in  the  negative,  he  being  himself  sensible  at  the  same  time 
that  he  had  for  some  months  been  affected  by  tubercular  consump- 
tion, it  was  held  in  Massachusetts  that,  whether  the  misstatement 
was  made  purposely  or  unwittingly,  the  representation  was  falsified, 
and  the  policy  made  void,  though  he  replied  to  another  inquiry, 
that  he  had  been  troubled  with  general  debility .^  It  was  stipu- 
lated in  this  case  that  "  the  application  formed  a  part  of  the  policy, 
and  if  in  any  respect  untrue,  and  if  there  was  any  misrepresenta- 
tion" in  it,  the  policy  should  be  void,  but  the  effect  of  the  mis- 
representation would,  it  seems,  have  been  the  same  without  this 
stipulation. 

The  fact  that  the  proposed  life  is  in  prison  for  debt  is  not  neces- 
sarily material ;  whether  it  is  so  or  not  depends  upon  the  particular 
circumstances,  and  is  a  question  for  the  jury.  If  it  is  material,  it 
must  be  stated,  though  there  is  no  inquiry  put  specifically  calling 
for  the  fact.'* 

648.  An  inquiry  must  be  truly  answered  according  to  the  object 
in  maJcing  it,  and  the  answer  should  be  definite  and  full. 

Thus,  to  the  inquiry  for  "the  usual  medical  attendant"  of  the 
life,  the  answer  should  state  the  one  who  is  best  able  to  give  an 
account  of  the  constitution  and  health  of  the  proposed  life  at  the 


1  Marsh.  Ins,  book  3,  note  at  the  3  Vose  v.  Eagle  Life  and  Health 
end  of  chapter  2.  Ins.  Co.,  6  Cushing's  R.  42. 

2  Koss  V.  Bradshaw,  1  W.  Bl.  312.  *  Huguenia  v.  Bailey,  6  Taunt.  186. 

31* 


366  REPRESENTATION   AND    CONCEALMENT.  [cHAP.  VII. 

time,  though  he  may  not  at  the  time  be  the  attendant,  another 
having  recently  been  called.^ 

If  one  has  recently  attended  in  severe  illness,  he  must  be  named.^ 

If  the  life  is  subject  to  incipient  insanity,  or  mental  imbecility, 
this  must  be  communicated.^ 

Where  the  applicant  produced  to  the  insurers  two  favorable  certi- 
ficates of  a  physician  who  had  examined  the  subject  of  a  life  policy 
in  December  and  in  the  March  following,  and  a  physician  had 
attended  the  subject  in  the  mean  time,  which  was  not  mentioned 
to  the  company,  a  verdict  having  been  given  for  the  holder  of  the 
policy,  the  court  ordered  a  new  trial,  that  the  question  might  be 
submitted  to  the  jury  whether  this  was  a  case  of  concealment,  the 
court  seeming  to  be  inclined  to  consider  it  to  be  such.^ 

The  question  being.  Has  the  party  been  "afflicted  with"  or 
"subject  to"  fits?  the  omitting  to  mention  two  such  of  epilepsy 
long  before  caused  by  an  accident,  was  considered  not  to  be  a  con- 
cealment ;  though  under  the  question.  "  Has  he  ever  had  fits  ? "  it 
might  have  been  a  concealment.^ 

The  assured  represented,  in  reply  to  interrogatories,  that  he  had 
not  any  spitting  of  blood.  It  appeared  that  he  had  spit  blood,  and 
it  was  held  that  he  was  bound  to  have  communicated  that  fact,  so 
that  the  insurers  might  judge  whether  it  amounted  to  the  disease 
of  spitting  blood.^ 

649.  Under  a  provision  that  the  policy  shall  be  void  in  case  of 
"any  untrue  averment"  by  the  assured  in  his  answers,  it  is  made 
void  by  such  an  averment,  though  the  assured  supposed  it  to  be 
true.' 

650.  An  oral  misrepresentation  in  reply  to  on  oral  inquiry  will 
render  a  life  policy  void,  no  less  than  a  communication  in  writing. 


1  Huckraan  v.  Fiernie,  3  !Mecs.  &  ^  Cbattock  v.  Shaw,  1  Moody  &  Rob. 
W.  505.  498. 

2  Maynard  r.  Rhodes,  1  C.  &  P.  360.  G  Qcacb  v.  Ingall,  14  Mees.  &  W.  95. 

3  Von  Lindenau  r.  Desborough,  4  7  Duckett  t'.  AVilliams,  2  Cromp.  & 
C.  &  P.  353 ;  S.  C,  3  B.  &  C  586 ;  Mees.  348 ;  4  Tyrw.  240 ;  and  see 
Swetc  r.  Fairlic,  6  C.  &  P.  1.  cases  supra,  No.  647. 

<  Morrison  v.  !Muspratt,  4  Bing.  60. 


SECT.  XVI.]  IN   LIFE   INSURANCE.  367 

As  where  a  false  reply  was  given  to  the  inquiry  whether  pre- 
vious application  had  been  made  to  any  other  office.' 

651.  In  case  of  a  misrepresentation  and  concealment,  the  iwlicy 
is  void,  though  the  decease  of  the  life  is  not  in  the  least  owing  to 
the  circumstance  misrepresented  or  concealed. 

It  was  so  ruled  by  Abbott,  C.  J.,  where  the  name  of  the  attend- 
ing physician,  and  the  diseases  for  which  he  had  prescribed,  were 
suppressed.- 

652.  A  mere  opinion,  expressed  as  such,  if  it  be  honestly  ex- 
pressed, is  not  a  representation  in  a  life  insurance  of  the  fact  sup- 
posed, any  more  than  in  a  marine  one. 

653.  The  assured  may,  hy  the  terms  of  the  policy,  malic  himself 
responsible  for  the  truth  of  the  representations  of  other  persons. 

Where  a  life  policy  bore  a  condition  that  the  declarations  made 
in  reply  to  certain  questions  proposed  by  the  office  should  "be 
considered  the  basis  of  the  contract"  of  insurance,  and  that,  if 
such  declarations  were  not  in  all  respects  true,  the  policy  should 
be  void,  a  misrepresentation,  in  respect  to  any  such  subject  of 
inquiry,  of  any  material  fact,  was  held  to  avoid  the  policy,  not 
only  on  the  ground  of  a  breach  of  condition,  but  also  as  a  mis- 
representation ;  that  is,  a  representation  of  a  third  person,  taken 
with  the  knowledge  of  the  assured,  either  actual  or  presumed,  and 
in  pursuance  of  the  directions  given  on  the  back  of  the  policy  in 
this  respect,  would  have  the  same  effect  in  defeating  the  policy  as 
if  made  by  the  assured  himself.  Where  a  policy  on  a  life  required, 
among  other  things,  a  statement  of  the  name  and  residence  of  the 
attending  physician  of  the  life  insured,  and  provided,  that,  if  any 
declaration  made  on  this,  as  well  as  the  other  subjects  of  inquiry, 
were  not  in  all  respects  true,  the  policy  should  be  void,  it  was 
held  that  a  misrepresentation,  by  the  person  whose  life  was  insured, 
of  the  name  of  his  attending  physician,  defeated  the  policy,  though 
the  subject  of  the  policy  had  no  interest  whatever  in  the  insurance, 
and  the  assured  had  no  intention  to  deceive  the  underwriters,  and 
did  not  know  that  any  misrepresentation  was  made.^ 


I  Wainwright  v.  Bland,  1  Mees.  &        2  Maynard  v.  Rhodes,  1  C.  &  P.  360. 
W.  32 ;  1  Tyrw.  &  G.  417.  3  Everett ?;.Desborough,5Bing. 503. 


368  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  VII. 

654.  If  third  ijersons,  whose  statements  are  'produced  by  the 
assured,  or  made  at  his  suggestion,  or  known  to  him,  culpably 
conceals  or  misrepresents  material  facts,  this  renders  the  insurance 
void,  though  it  contains  no  provision  directly  and  expressly  mak- 
ing the  assured  responsible  for  the  truth  and  fairness  of  the  state- 
ments. 

This  doctrine  applies  especially  to  statements  made  by  the  per- 
son whose  life  is  insured  by  another. 

In  the  negotiation,  in  May  and  June,  for  two  policies  in  favor  of 
an  annuity  creditor  on  the  life  of  the  debtor,  the  latter,  on  examin- 
ation by  the  insurers,  replied  to  the  inquiry,  "Who  is  your  medi- 
cal attendant?"  "I  have  none  but  Mr.  G."  He  had  formerly 
been  attended  by  Mr.  G.,  but  not  within  three  years.  He  had 
during  the  preceding  February  and  March  been  attended  by  a  phy- 
sician, and  also  by  a  surgeon,  for  inflammation  of  the  liver,  fever, 
and  determination  of  blood  to  the  head.  Abbott,  C.  J.,  instructed 
the  jury,  that  this  misrepresentation  made  the  policy  void.^ 

The  Chief  Justice  is  reported  to  have  remarked  that  the  appli- 
cant "allowed"  the  party  to  make  this  representation;  he  must 
accordingly  have  known  of  its  being  made.  It  does  not,  however, 
appear  whether  the  creditor  knew  it  to  be  a  misrepresentation.  It 
has  the  appearance  of  being  fraudulently  intended  by  the  party 
examined. 

To  a  similar  question  put  to  the  wife,  in  a  negotiation  for  a 
policy  in  favor  of  her  husband,  she  gave  the  name  of  the  family 
physician  of  her  husband,  who  had  casually  prescribed  for  her  once, 
or  possibly  twice,  during  the  ten  previous  months  since  her  mar- 
riage to  the  applicant,  but  had  not  attended  her  professionally,  and 
the  occasion  and  the  prescription  were  of  so  little  importance  that 
he  had  made  no  memorandum  of  it  in  his  book.  She  had  pre- 
viously been  attended  for  a  number  of  years  by  another  physician, 
and  treated  for  dangerous  delirium  tremens,  and  an  erysipelatous 
inflammation  of  the  legs.     She  had,  previously  to  her  marriage  to 

Soc  also  IIiK'kman  r.  Fornic,  1  Horn     Rhodes,  2  Moody  &  Rob.  328;  1  C. 

&  Ilurlstonc,  Ml);    J)uckctt  v.  AVil-     &  P.  3G0. 

liams,  2  C.  &  M.  318;  Maynard  v.        i  Maynard  r.  Rhodes,  1  C.  &  P.  300. 


SECT.  XVI.]  IN   LIFE   INSURANCE.  369 

the  applicant,  applied  to  two  other  companies  for  insurance  on  her 
life,  and  referred  to  her  former  physician,  both  of  which  declined 
to  insure  her.  A  verdict  having  been  given  for  the  assured.  Lord 
Abinger  and  his  associates,  in  the  Court  of  Exchequer,  granted  a 
new  trial,  on  the  ground  that  this  was  a  misrepresentation,  and 
that  her  attending  physician,  within  the  meaning  and  intention  of 
the  question,  was  the  one  who  had  attended  her  previously  to  her 
marriage. 1 

In  this  case  the  husband  sent  the  wife  to  the  board  of  directors 
of  the  company  for  examination,  and  so  probably  knew  what 
answers  she  had  made.  The  jury  found  that  the  husband  did  not 
know  of  her  having  had  the  delirium  tremens  and  erysipelas.  The 
answer  seems  to  have  been  considered  by  the  court  to  have  been 
fraudulently  given  by  the  wife. 

A  subsequent  decision  of  the  English  Court  of  King's  Bench 
coincides  with  the  preceding.  In  the  negotiation  for  an  insurance 
in  favor  of  A  on  the  life  of  B,  the  latter  appeared  at  the  office  of 
the  insurers  for  examinations.  He  omitted  to  state  that  he  was  in 
the  habit  of  intemperance.  It  was  insisted  that  he  was  under 
these  circumstances  the  agent  of  the  assured,  to  whom  his  conceal- 
ment of  this  fact  was  imputable.  Lord  Denman,  C.  J.,  in  instruct- 
ing the  jury,  remarked  that  the  life  could  not  be  considered  the 
general  agent  of  the  assured,  and  that  the  doctrine  that  the  assured 
were  responsible  for  his  acts  was  greatly  overstrained  by  the  de- 
fendant's counsel.  "He  is  to  answer  all  questions  put  to  him,  and 
if  he  answers  falsely,  that  will  vitiate  the  policy.  But  the  mere 
non-communication  of  his  habits  of  life  by  the  party  whose  life 
was  insured,  would  not  itself  vitiate  the  the  policy."^ 

1  Huckman  v.  Fernie,  3  Mees.  &  Lord  Tenterden  and  his  associates 
W.  505.  may  have  applied  this  doctrine  in  one 

2  Rawlins  v.  Desborough,  2  Moody  case  to  an  omission  of  a  material  fact 
&  Kob.  328.  See  also  the  elaborate  in  a  certificate  by  a  physician;  it  does 
note  by  the  reporters  to  this  case,  in  not  distinctly  appear  whether  it  was 
which  the  decisions  on  the  responsi-  considered  to  be  an  intentional  and 
bility  of  the  assured  for  the  misrepre-  fraudulent  omission  or  not.  Von  Lin- 
sentations  and  non-representations  of  denau  v.  Desborough,  3  C.  &  P.  353 ; 
third  persons  are  examined  and  com-  8  B.  &  C.  586. 

mented  upon. 


370  REPRESENTATION   AND   CONCEALMENT.  [CHAP.  VII. 

The  doctrine  just  stated  accords  with  that  already  laid  down 
relative  to  commercial  insurance.^ 

655.  If  the  third  person  ivhose  statement  is  offered  or  procured 
hy  the  assured,  or  at  his  suggestion,  malces  a  misrepresentation  of, 
or  omits  to  communicate  a  material  fact,  without  fraud  or  fault, 
but  through  oversight  or  forgetfulness,  it  will  render  the  policy 
void  if  the  assured  himself  or  his  agent  for  effecting  the  insurance 
knew  of  the  misrepresentation  or  concealment,  or  had  good  reason 
to  suspect  it ;  otherwise  it  will  not  render  the  policy  void,  if  it  is  a 
case  of  mere  incidental  aggravation  of  the  risk,  which  answers  to 
the  description  in  the  policy,  and  is  substantially  the  risk  under- 
stood by  the  parties.  But  if  the  circumstance  thus  inadvertently 
misrepresented  or  omitted  goes  essentially  and  fundanientally  to 
the  contract,  the  case  is  one  in  which  the  minds  of  the  parties 
have  not  met,  and  the  contract  is  void  and  a  subject  for  relief,  on 
the  ground  that  it  is  not  the  one  in  contemplation  of  the  parties. 

Decisions  have  been  made  which  apparently  do  not  agree  with 
the  doctrine  just  stated. 

Lord  Lyndhurst  ruled  that  where  a  party  effects  a  policy  on  the 
life  of  another,  whose  statement  is  produced  to  the  insurers,  if  the 
statement  is  materially  erroneous  in  making  the  risk  appear  less 
than  it  really  is,  this  renders  the  policy  void,  though  the  party 
making  the  statement  supposed  it  to  be  true.^ 

Under  the  general  inquiry  as  to  any  other  material  circumstance 
than  those  stated  in  reply  to  the  particular  inquiries,  Lord  Tenter- 
den  intimated  to  the  jury,  that  an  omission  by  a  foreign  physician, 
whose  certificate  had  been  produced,  to  state  under  this  general 
inquiry  decided  symptoms  of  insanity  or  mental  imbecility,  ren- 
dered the  policy  void.^ 

This  may,  however,  have  been  considered  a  case  of  intentional, 
fraudulent  concealment,  by  the  foreign  physician,  as  another  phy- 
sician, examined  as  a  witness  at  the  trial,  said,  that  in  like  circum- 


1  Supra,  s.  1,  No.  5.19.  C.  &  P.  353.     And  this  ruling  was 

2  Dufkctt  V.  Williams,  2  Cromp.  &  approved  by  Justices  Bayley  and  Lit- 
Mecs.  318 ;  4  Tyrw.  210.  tledalc,  8  B.  &  C.  586. 

8  Von  Lindcnau  r.  Dcsborougli,  3 


SECT.  XVI.]  IN  LIFE   INSURANCE.  371 

Stances  he  should  have  deemed  it  to  be  his  duty  to  mention  the 
mental  infirmity.  But  the  decision  is  not  put  distinctly  upon  that 
ground.  There  appears  to  have  been  no  reason  for  imputing  to 
the  assured  a  knowledge  of  the  uncommunicated  fact. 

The  ruling  of  Lord  Denman,  C.  J.,  in  a  case  before  cited,i 
agrees  directly  with  the  proposition  just  laid  down. 

656.  If  the  person  referred  to  by  the  assured  or  his  agent,  for 
information  concerning  the  risk,  answers  fairly  the  inquiries  put  to 
him,  this  in  general  suffices  ;  he  is  not  required  to  volunteer  any 
statement  of  circumstances  not  inquired  about,  unless  it  is  evident 
to  him,  from  the  apparent  object  of  the  inquiries  made,  that  some 
analogous  circumstance  within  his  knowledge  was  material  and 
important  to  be  communicated.  In  such  case,  the  suppression  of 
the  circumstance  would  evidently  be  dishonest,  and  betray  a  fraud- 
ulent intent.^ 

The  case  can,  however,  rarely  occur,  since  the  examination 
usually  includes  some  general  question,  which  would  require  a 
statement  of  any  material  fact  within  the  recollection  of  ihe  party 
examined. 

657.  The  validity  of  an  insurance  by  a  creditor  or  other  party 
interested  in  another's  life,  is  not  affected  by  the  omission  of  the 
party  whose  life  is  insured  to  state,  in  reply  to  interrogatories,  a 
fact  in  his  own  experience  of  ivhich  he  ivas  himself  not  conscious, 
and  of  which  he  had  not  been  informed  by  others  : 

As  where  he  had  been  in  a  state  of  incipient  Insanity  without 
being  conscious  or  informed  of  it.^ 

658.  A  misrepresentation  or  concealment  will  render  the  policy 
void,  though  the  circumstance  misrepresented  or  concealed  tmms 
out  not  to  be  the  cause  of  the  decease  of  the  life  insured,  or  to 
have  any  connection  with  it.'* 


•  Rawlins  u.  Desborough,  2  Moody     down  by  Lord  Denman  in  Rawlins  v. 
&  Rob.  328.  •  Desborough,  ut  supra. 

2  This  proposition  is  in  a  close  ana-        3  Swete  v.  Fairlie,  6  C.  &  P.  1. 
logy  to  the  cases  cited  in  the  text  re-        4  Maynard  v.  Rhodes,  1  C.  &  P. 
lative  to  fraudulent  suppressions  and     360. 
representations,  and  is  directly  laid 


372  REPRESENTATION   AND    CONCEALMENT.         [CHAP.  VII. 


SECTION    XVII.       PRESUMPTION    FROM    THE    RATE    OF    PREMIUM. 

659.  The  rate  of  premium  has  been  considered  a  circumstance 
of  some  importance  in  determining  whether  a  fair  representation 
has  been  made. 

If  the  risk  appears  to  have  been  known  by  the  assured,  at  the 
time  of  insuring,  to  be  extraordinary,  and  yet  only  the  ordinary 
premium  for  the  voyage  was  given,  it  affords  some  presump- 
tion, of  more  or  less  weight,  against  the  fairness  of  the  represent- 
ation.^ 

Upon  the  same  principle,  an  extraordinary  premium  is  the 
ground  of  presuming  that  the  risk  was  represented  to  be  extra- 
ordinary.- 

It  is  not,  however,  to  be  inferred  from  the  high  rate  of  premium 
merely,  that  a  concealed  or  misrepresented  fact  was  to  be  at  the 
risk  of  the  insurers.^ 


SECTION     XVIIl.         THE    WITHDRAWING,    SUPERSEDING,    OR    WAIVER 
OF    A    REPRESENTATION. 

660.  An  express  warranty  or  stipulation  including  a  fact  re- 
presented, or  inconsistent  ivith  it,  ivill  control  and  supersede  the 
representation,  since  the  written  agreement,  so  far  as  its  express 
provisions  extend,  is  conclusive  proof  of  the  conditions  on  which 
the  contract  is  made. 

A  ship  being  insured  "to  all  or  any  ports  or  places"  beyond 
the  Cape  of  Good  Hope,  it  was  alleged  that  the  assured  had  re- 
presented that  she  was  going  "  to  Pondicherry  and  China."  Lord 
Mansfield  and  the  other  judges  held,  that  any  such  representation 
was  superseded  by  the  description  of  the  voyage  in  the  policy.'* 

If  the  policy  be  made  in  behalf  of  "  whom  it  may  concern,"  the 
undiMAvritcr  cannot  object  that  he  was  not  informed  who  were  in- 

1  Brldj,'cs  7.'.  Hunter,  1  IM.  &  S.  15.       denau    v.    Dcsborougli,    3    C.   &   P. 

'■i  Fri-(;laii(l  r.  Clover,  7  East,  457.       353. 

3  Per  Lord  Tunterdcn,  Von   Lin-         ^  13)20  v.  Fletcher,  1  Doug.  271. 


SECT.  XVIII.]  THE  WITHDRAWING,  ETC.,  OF  A  REPRESENTATION.    373 

terested,  for  by  subscribing  the  policy  he  has  agreed  to  insure  any 
one  who  may  be  lawfully  interested. 

In  the  case  of  a  policy  of  this  description  made  in  New  York, 
the  person  who  effected  it  resided  there,  but  one  of  the  part-owners 
resided  in  Curacoa,  at  that  time  a  belligerent  colony.  It  was 
insisted  that  this  fact  ought  to  have  been  disclosed.  Mr.  Justice 
Kent  said,  "The  insurers  took  upon  themselves  the  risk  of  the 
property,  whether  belligerent  or  neutral."^ 

Where  the  voyage,  as  represented  in  the  proposal  for  insurance, 
was  not  worth  so  high  a  premium  by  five  or  six  per  cent,  as  that 
on  which  the  ship  actually  sailed,  yet  this  representation  was  waived 
by  the  description  of  the  voyage  in  the  policy.^ 

In  the  case  of  a  policy  on  the  "Spanish  brig  New  Constitution," 
the  description  imported  and  warranted  that  the  brig  was  in  fact 
Spanish  ;  it  availed  nothing  that  the  underwriters  knew  she  was 
only  "ostensibly"  Spanish,  for  it  was  agreed  in  the  written  instru- 
ment what  her  national  character  should  be.^ 

661.  But  there  is  a  distinction  in  this  respect  between  an  ex- 
press and  an  implied  stipulation  or  warranty. 

It  has  already  appeared,  that  the  assured  must  make  true  an- 
swers to  inquiries  relating  to  the  subject  of  an  implied  warranty, 
which  would  be  futile  unless  the  contract  were  to  be  affected  by 
the  representations  made  in  reply  to  such  inquiries.  "As  far  as  a 
representation  extends,"  says  Mr.  Justice  Piatt,  "an  implied  war- 
ranty ceases."'^ 

662.  A  prior  representation  may  he  superseded  or  impliedly 
withdrawn  by  a  subsequent  one  stating  the  circumstances  differ- 
ently, or  stating  new  circumstances.  This  proposition  is  involved 
in  many  of  the  cases  stated  in  the  present  chapter, 

663.  The  question,  whether  a  usage  is  controlled  by  a  repre- 
sentation, or  will  supersede  it,  seems  to  depend  in  some  degree 
upon  another,  namely,  whether  a  usage,  and  the  course  of  the 


1  Elting  V.  Scott,  2  Johns.  157.  152.     See  also  Pickering  v.  Dowson, 

2  Vandervoort  v.  Smith,  2  Caines,  4  Taunt.  779. 

155.  4  Walden  v.  N.  Y.  FLremens'  Ins. 

3  Atherton  v.  Brown,  14  Mass.  R.  Co.,  12  Johns.  128. 
VOL.  I.                            32 


374  REPRESENTATION    AND    CONCEALMENT.  [CIIAP.  VII. 

trade,  are  to  be  considered  as  equivalent  to  an  express  part  of  the 
policy.  If  the  construction  be,  as  Lord  INIansfield  said,  the  same 
"as  if  the  point  of  usage  were  inserted  in  the  contract  in  terms,"  ^ 
then  it  should  seem,  if  his  observation  is  to  be  adopted  in  its  strict 
and  literal  meaning,  that  the  assured  will  be  bound  by  the  usage, 
though  he  may  have  represented  to  the  insurers  that  he  intended 
to  depart  from  it.  But  Lord  Mansfield  was  speaking  of  a  case 
where  there  was  no  representation  as  to  the  point  of  usage,  and  to 
apply  his  remark  to  any  other  case  might  be  forcing  it  beyond  the 
sense  in  which  it  was  intended.  It  appears  by  some  cases,  that 
the  obligation  for  a  usage  may  be  qualified  and  restrained  by 
a  representation,  but  only  in  such  manner  that  the  necessary 
and  plain  import  of  the  words  of  the  policy  shall  remain  unim- 
paired. 

Thus,  where  the  captain  was  limited  by  his  orders  to  one  out  of 
three  courses  of  the  voyage,  when  it  was  the  usage  to  leave  it  to 
the  discretion  of  the  captain  to  choose  either  course  at  the  dividing 
point,  the  judges  said  the  orders  "ought  to  have  been  communi- 
cated to  the  underwriters  ;"  if  "disclosed"  to  them,  "they  would 
perhaps  have  required  a  larger  premium,  or  not  have  subscribed  ;"^ 
by  which  it  seems  to  be  implied,  that  a  representation  of  the  fact 
that  the  captain  was  limited  to  one  course  would  have  given  the 
assured  a  right  to  recover  for  a  loss  ;  neither  of  the  judges  said 
any  thing  of  inserting  the  circumstance  of  the  orders  in  tiie  policy. 

664.  The  neglecting  to  maJce  inquiries  may  be  a  waiver  of 
information. 

Instances  have  occurred  in  the  preceding  cases,  where  the  insurer, 
by  omitting  to  inquire  respecting  circumstances  relating  to  the  sea- 
worthiness of  the  ship,  the  national  character  of  the  property,  and 
its  character  as  contraband  of  war  or  not,  and  respecting  the  time 
of  the  vessel's  sailing,  has  been  held,  by  so  doing,  to  have  waived 
any  information  concerning  facts,  in  respect  to  which  the  assured 
is  not  required  in  the  first  instance  to  make  any  disclosure. 

665.  So  a  representation  may  be  such  as  to  put  the  insurer  on 
inquiry  if  he  wishes  to  learn  other  facts  ;  and  if  he  neglects  to 

>  Mason  v.  Skurry,  Park,  101.  2  Middlewood  r.  Blakcs,  7  T.  R.  1G2. 


SECT.  XVIII.]  THE  WITHDRAWING,  ETC.,  OF  A  REPRESENTATION.    375 

make  inquiry,  he  is  jprecludcd  from  objecting  on  the  ground  of 
concealment. 

Where  a  letter  frorii  the  master,  then  on  the  coast  of  Africa, 
acting  instead  of  one  who  had  been  killed,  was  exhibited,  saying, 
"Tlie  natives,  finding  us  weak-lianded,  do  as  tiiey  please.  I  have 
nine  men  on  board  now.  I  made  mention  of  the  ivory,  palm-oil, 
&;c.,  in  my  last  letter.  I  do  not  expect  to  get  all  my  wood  till 
the  latter  part  of  next  month,  when  you  may  expect  my  sailing." 
The  insurers  objected  to  the  non-production  of  the  previous  letter 
referred  to  in  this,  in  which  divers  disasters  were  mentioned.  Lord 
Ellenborough  and  his  associates,  considering  that  this  letter  dis- 
closed that  there  was  a  previous  letter,  that  the  vessel  had  been 
long  on  the  coast,  and  had  lost  part  of  the  men,  and  was  in  cir- 
cumstances very  unfavorable  for  the  risk,  were  of  opinion  that  the 
insurers  were  put  upon  inquiry  for  further  particulars,  if  they  wished 
to  learn  them,  and  that  the  assured  was  not  bound  to  make  any 
further  disclosures  in  the  first  instance. ^ 

666.  If  a  fact  stated  or  promissory  representation  ceases  to  he 
material,  in  consequence  of  an  entire  change  of  circumstances, 
hefore  the  risk  commences,  it  need  not  he  verified. 

As  where  it  relates  to  a  belligerent  peril,  and  peace  intervenes.^ 
The  same  would  be  true  of  a  concealment. 

667.  The  assured  may,  at  any  time  hefore  the  policy  is  signed, 
withdraw  a  representation  previously  made,^  by  giving  the  under- 
writers explicitly  to  understand,  that  he  was  mistaken  in  regard  to 
the  facts  represented,  or  that  he  will  not  be  held  to  a  compliance 
with  what  he  had  verbally  promised. 

Lord  Ellenborough  ruled,  that  the  assured  virtually  withdrew  a 
representation  made  by  him  at  the  time  of  signing  the  slip,  by 
making  another  and  different  representation  at  the  time  of  signing 
the  policy.  He  said,  "The  first  conversation  was  qualified  and 
controlled  by  what  followed."* 

Mr.  Justice  Woodbury  is  reported  to  have  ruled  that  a  misre- 
presentation was  cancelled  by  a  correction  made  after  the  policy 

1  Freeland  v.  Glover,  7  East,  457.  3  Carter  v.  Boehm,  3  Burr.  1905. 

2  2  Duer,  702.  4  Edwards  v.  Footner,  1  Camp.  530. 


376  REPKESENTATION   AND    CONCEALMENT.         [CIIAP.  VII. 

had  gone  into  effect  and  before  any  loss  had  happened,'  but  the 
riding,  no  doubt,  had  reference  to  some  act  of  the  underwriters  or 
their  silence,  whereby  they  signified  their  acquiescence  in  the  cor- 
rection. 

Whether  an  agent's  knowledge  of  a  material  fact  will  exonerate 
the  applicant  from  the  obligation  to  communicate  it,  will  depend 
upon  his  authority  to  represent  the  insurers  in  this  respect.^ 

Wiiere  the  agent  of  a  life  insurance  company,  who  was  not 
authorized  to  agree  for  insurance,  knew  of  the  falsity  of  a  material 
representation  by  an  applicant,  this  was  held  not  to  cancel  the 
misreprese  n  tation  .^ 

A  concealment  is  cancelled  by  the  fact,  which  is  not  stated  by 
the  assured,  being  known  to  the  underwriter,  as  appears  by  the 
definition  of  concealment.'* 

668.  The  forfeiture,  hy  reason  of  a  misrepresentation  or  con- 
cealment, may  he  ivaivecl  by  the  insurers  : 

As  by  receiving  a  new  premium  on  a  fire  policy,  after  the  mis- 
representation is  known. ^ 

SECTION   XIX.       COMPLIANCE    WITH    A    REPRESENTATION. 

669.  It  is  sufficient  that  a  representation  is  equitably  and  sub- 
stantially complied  ivith,  and,  not  requisite  that  the  facts  should 
be  literally  as  they  were  stated.^ 

If  the  existing  facts  or  intelligence,  on  which  the  representation 
is  made,  are  on  the  whole  as  favorable  to  the  risk  as  they  were 
represented  to  be,  and  correspond  in  general  to  the  representation, 
the  insurers  have  no  ground  of  complaint,  though  the  statement 
was  not  literally  and  minutely  correct. 

Where  it  was  represented  that  the  vessel  would  sail  in  ballast, 
but  the  captain,  without  the  owner's  knowledge,  took  on  board  a 


1  NicoU  r.  Am.  Ins.  Co.,  3  Woodb.  4  Supra,  No.  531. 

&  Mind's  U.  .029.  5  Allen  v.  Vermont  Mut.  Fire  Ins. 

2  See  No.  1872,  187G,  1H78.  Co.,  12  Vt.  K.  3G6. 

3  Vose  V.  Eagle  Life  and  Health  6  De  Ilahn  v.  Hartley,  1  T.  R.  343  ; 
Ins.  Co.,  6  Cushing'9  11.  42.  2  T.  R.  18G. 


SECT.  XIX.]        COMPLIANCE   AVITII   A   REPRESENTATION.  377 

cask  of  shoes,  and  ten  barrels  of  gunpowder,  Kent,  C.  J.,  said  : 
"The  representation  of  saihng  in  ballast  was  merely  stating  that 
the  vessel  would  not  be  exposed  to  the  sea-perils  attending  a  loaded 
ship,  and  was  substantially  performed."  ^ 

It  being  represented  that  the  vessel  would  sail  with  twelve  guns 
and  twenty  men,  she  sailed  with  nine  carriage  guns  and  six  swivels, 
and  fourteen  men  and  seven  boys.  Boys  were  considered  to  be 
men  within  the  description  in  the  representation,  and  as  the  force 
appeared  to  be  equivalent  to  that  represented,  though  not  tiie  same, 
the  contract  was  held  to  be  valid.^ 

670.  A.  literal,  in  contradistinction  to  a  substantial,  compliance 
is  not  sujjicient. 

It  being  represented  that  a  ship  would  "sail  as  soon  as  the  fri- 
gates, calculating  to  take  advantage  of  their  protection,"  and  she 
sailed  before  them  ;  this  was  held  not  to  be  a  compliance  with  the 
representation.^ 

671.  Property  represented  to  he  of  any  particular  national 
character,  or  neutral,  must  be  owned  and  documented,  and  accom- 
panied by  the  proper  insignia  as  such,  and  the  evidence  of  the 
character  represented  must  be  ready  to  be  produced.^ 

A  vessel,  French  built,  was  represented  to  be  owned  by  Ameri- 
can citizens,  and  to  have  on  board  an  original  bill  of  sale,  or  an 
attested  copy  of  it,  and  such  a  bill  of  sale  was  on  board,  but  on 
the  ship's  being  captured  was  not  produced,  and  the  captain,  on 
his  examination  before  the  Admiralty  Court  at  Halifax,  denied  that 
he  had  any  such  bill  of  sale  on  board.  It  was  held,  that  the  repre- 
sentation was  material,  and  had  not  been  complied  with.  Kent,  J., 
said  :  "  It  would  be  absurd  to  suppose  that  the  bill  of  sale  on  board, 
in  a  concealed  situation,  and  never  to  be  used,  fulfilled  the  intention 
of  the  parties."^ 

A  representation  that  a  ship  was  neutral,  was  held  in  New  York 

1  Suckley  v.   Delafield,  2   Caines,     ton  v.  Manufacturers'  Mut.  Fire  Ins. 
222.  Co.,  8  Mete.  114,  cited  infra. 

2  Pawson   V.  Watson,  Cowp.  785;        4  Dawson  v.  Atty,  7  East,  367. 

1  Doug.  12,  u.  5  Murray  v.  Alsop,  3  Johns.  Cas.  47. 

^  Alsop  V.  Coit,  12  Mass.  R.  40.    See     See  1  Chr.  Rob.  103. 
also  remarks  per  Shaw,  C.  J.,  in  Hough- 
32* 


378  REPRESENTATION   AND    CONCEALMENT.  [CIIAP.  VII. 

to  be  "equivalent  to  a  warranty,"!  and  it  accordingly  requires  that 
it  should  be  owned,  documented,  and  navigated,  in  conformity  with 
the  representation. 

672.  Whether  a  representation  that  a  ship  is  or  was  to  sail  on, 
or  before,  or  not  until  after,  a  certain  day,  must  be  strictly  com- 
plied with,  or  is,  like  representations  generally,  satisfied  by  a  sub- 
stantial compliance  ? 

If  the  policy  is  "  at  and  from  "  a  place  named,  and  the  vessel  is 
hindered  from  sailing  by  a  peril  by  which  the  underwriter  is  not  to 
be  directly  or  indirectly  affected,  as,  for  instance,  by  some  volun- 
tary act  of  the  assured  himself,  the  contract  is  forfeited  ;  but  not 
so  if  the  hinderance  is  by  some  casualty  that  may  be  presumed  to 
have  been  in  contemplation  of  the  parties  as  an  exception  ;  espe- 
cially and  conclusively,  if  it  is  by  the  perils  insured  against. 

Such  a  representation  in  a  policy  "  from  "  a  port  is  most  obvi- 
ously construed  to  be,  that  the  vessel  will  be,  or  was,  ready  to  sail 
on  the  day  named  ;  and  her  being  then  ready  is  a  substantial,  if 
not  a  strict,  compliance,  though  she  may  have  been  hindered  by 
the  state  of  the  weather,  or  other  simultaneous,  temporary  casualty  ; 
but  if  by  any  prior  casualty  which  in  such  case  is  at  the  risk  of  the 
assured,  or  any  act  imputable  to  the  assured,  whether  simultaneous 
or  prior,  the  contract  will  be  defeated.     That  is  to  say, 

If  the  vessel  is  hindered  from  sailing  on  the  stipulated  day  by 
any  cause,  simultaneous  or  prior,  for  which  the  assured  is  exclu- 
sively responsible,  the  contract  is  either  forfeited  or  defeated ; 
the  former  if  the  risk  had  commenced,  the  latter  if  it  had  not.- 

A  positive,  unqualified  representation  that  the  vessel  did  sail, 
or  will  sail,  on  a  certain  day,  wm^^,  if  material,  be  verified. 

673.  /;i  case  of  a  ivritten  promissory  representation,  referred 
to  in  the  policy  as  a  representation,  a  substantial  compliance  is 
sufficient. 

A  substantial  compliance  with  a  representation  that  a  factory  is 
examined  every  day  after  work,  and  a  cask  of  water  and  buckets 
are  kept  in  each  story,  is  sufficient.     An  occasional  omission  to 


1  Vandenhcuvel  v.  Church,  2  Johns.         2  See  2  Duer,  Mar.  Ins.  686,  Lect. 
Cas.  173,  n.  14,  s.  29. 


SECT.  XIX.]      COMPLIANCE   AVITII   A   REPRESENTATION.  379 

examine  the  mill,  happening  by  accident  or  the  negligence  of  subor- 
dinate persons  or  workmen,  not  sanctioned  by  the  assured  or  liis 
superintendent,  manager,  or  agent,  might  not  amount  to  a  non- 
com  phance.  So,  respecting  the  keeping  of  a  cask  of  water,  that 
a  cistern  or  reservoir  of  sufficient  capacity  would  be  a  compliance, 
though  it  was  not  a  cask,  and  the  keeping  of  a  small,  insufficient 
cask  would  not  be  a  compliance,  though  literally  it  corresponded 
to  the  representation.^ 

Under  a  condition  of  a  fire  policy  on  a  china-factory,  that,  if  an 
assured  should  describe  it  otherwise  than  as  it  really  was,  so  that 
it  should  be  insured  at  a  less  premium,  the  policy  should  be  void, 
a  room  described  as  a  "store  for  painted  ware,"  on  the  plan  shown 
to  the  insurers,  was  in  fact  occupied  as  the  carpenter's  shop  for  the 
establishment.  The  rate  of  premium  was  the  same  for  either  use. 
This  was  held  to  be  a  sufficient  compliance.^ 

Under  the  same  condition,  the  building  was  represented  to  be 
"  a  stone  mill  covered  with  wood."  The  gables  were  wood.  This 
was  held  not  to  be  a  misrepresentation,  if  the  rate  of  premium 
would  not  be  thereby  enhanced.^ 

674.  A  written  representation  may  he  referred  to  in  the  policy 
in  such  a  manner,  or  may  he  of  such  a  matter,  as  to  require  as 
strict  a  conformity  of  the  facts  to  the  statement,  and  compliance, 
as  if  it  were  an  express,  specific  warranty  in  the  policy. 

Where  a  policy  stipulates  that  it  is  to  be  void  in  case  of  the 
facts  stated  in  the  written  application  being  untrue,  and  one  of  the 
facts  required  is  a  specification  of  other  buildings  within  a  given 
distance  from  the  one  insured,  an  omission  to  mention  a  building 
situated  within  that  distance  will  render  the  policy  void,  without 
any  distinction  as  to  its  enhancing  the  risk  or  not.^ 

This  case  is  put  partly  upon  the  fact  of  the  reference  in  the 
policy,  but  many  statements  might  be  true  within  the  meaning  of 
such  a  reference,  though  not  literally  verified.     In  this  case,  the 


1  Houghton  V.  Manufacturers'  Mut.  3  Columbian  Ins.  Co.  v.  Lawrence, 
Fire  Ins.  Co.,  8  Mete.  114.  2  Peters's  S.  C.  K.  25. 

2  Delonguemere  v.  Tradesmens'  Ins.  ^  Burritt  v.  Saratoga  County  Mut. 
Co.,  2  Hall's  R.  589.  Fire  Ins.  Co.,  5  Hill,  188. 


380  REPRESENTATION   AND    CONCEALMENT.         [CIIAP.  VII. 

only  room  for  construction  and  qualification  of  the  statement  seems 
to  be  the  determining  of  what  is  a  "  building  "  within  the  meaning 
of  the  policy.  Any  structure  within  the  specified  distance,  being 
considered  to  be  a  "building,"  insurmountably  falsifies  the  state- 
ment, which  is  made  material  by  its  being  an  answer  to  an  inquiry 
respecting  a  specific  fact.  In  case  of  some  general  representation, 
as  of  neutrality,  the  distinction  between  a  substantial  and  a  strict 
compliance,  if  there  is  any,  is  hardly  appreciable.  In  such  cases 
a  warranty  and  a  representation  are  substantially  equivalents,  though 
the  representation  is  not  referred  to  in  the  policy. 

Lord  Ellenborough  makes  a  distinction  between  a  warranty  and 
a  representation  of  neutrality,  in  respect  of  the  strictness  of  the 
compliance  requisite,  but  it  seems  to  have  been  merely  for  a  plau- 
sible way  of  escaping  the  doctrine  of  the  conclusiveness  of  a 
French  decree  of  condemnation.^ 


SECTION    XX.       EFFECT    OF    A    CONCEALMENT    OR    MISREPRESENTA- 
TION. 

675.  One  of  the  implied  stimulations  by  the  assured,  on  ivhich 
the  underwriter  subscribes,  is,  that  he  is  informed  by  the  assured 
of  all  material  circumstances  known  to  the  latter,  and  not  known, 
or  presumed  to  be  so,  to  himself,  and  that  no  misrepresentation 
has  been  made  by,  or  is  imputable  to,  the  assured ;  and  if  this 
stipulation  is  not  substantially  complied  with,  he  is  wholly  or 
partially  exonerated  from  the  liabilities  to  which  he  would  other- 
wise have  been  subject. 

676.  The  insurance  ivill  be  defeated  in  full  or  in  part,  as  the 
case  may  be,  ivhether  the  past  or  existing  circumstances  misrepre- 
sented or  suppressed,  eventually  turns  out  favorably  or  unfavor- 
ably for  the  risk. 

The  whole  question,  as  the  definitions  already  given  import,  is, 
whether,  if  the  fict  suppressed  had  been  communicated,  or  the 
fact  misrepresented  had  not  been  represented,  or  had  been  repre- 
sented  truly,  the  tendency  would  have  been  to  influence  the  mind 

l.Von  Tungcln  v.  Dubois,  2  Camp.  151. 


SECT.  XX.]  EFFECT   OF   A   CONCEALMENT,   ETC.  381 

of  the  underwriter  to  decline  to  subscribe,  or  to  demand  a  higher 
premium.  If  such  would  have  been  the  tendency,  then  the  sub- 
scription is  in  effect  cancelled,  unless  the  presumption  lliat  the 
insurer  was  thereby  influenced  is  countervailed,^ 

A  broker,  knowing  that  a  ship,  having  on  board  a  part  of  the 
goods  insured,  was  reported  to  have  been  seen  at  sea  "deep  and 
leaky,"  did  not  disclose  this  information  to  the  underwriters,  which 
defeated  the  contract,  though  in  fact  the  ship  was  not  deeply  laden 
or  leaky.- 

677.  In  case  the  misrepresentation  or  concealment  has  refer- 
ence to  past  or  existing  circumstances,  the  underwriter  is  dis- 
charged from  all  liability  in  respect  of  the  subject  or  risks  to 
which  the  misrepresentation  or  suppression  relates. 

This  doctrine  is  constantly  assumed,  and  runs  through  the  whole 
jurisprudence  on  the  subject. 

G78.  If  a  fact  suppressed  relates  to  only  a  part  of  the  goods 
or  subjects  insured,  but  yet  enhances  the  risk  on  the  whole,  it  is  a 
concealment  in  respect  of  the  whole  : 

As  where  a  part  of  the  insured  cargo  is  of  a  belligerent  charac- 
ter, thereby  exposing  the  whole  to  detention.^ 

679.  Whether  a  concealment  or  misrepresentation  respecting  one 
of  tivo  or  more  subjects,  or  a  part  of  a  subject,  insured  in  a  policy, 
but  not  affecting  the  other  part  or  other  subjects,  is  such  in  refer- 
ence to  these,  the  case  being  free  of  fraud  ? 

In  the  case  above  cited,"*  Mr.  Justice  Washington  gave  as  a 
reason  for  a  concealment  as  to  a  part  of  the  cargo  being  such  in 
reference  to  the  remainder,  that  the  risk  upon  the  whole  was  en- 
hanced by  the  suppressed  fact.  Conversely,  therefore,  applying 
the  same  criterion,  if  the  suppressed  fact  does  not  enhance  the  risk 
on  the  remainder  of  the  cargo,  or  on  the  other  subjects  insured  in 
the   policy,  it  will   remain  in  force  upon   these.     And  I  am  not 


1  Willes  V.  Glover,  4  B.  &  P.  14;        3  Marshal  i>.  Union  Ins.  Co.,  2  Wash. 
Anon.,  Skin.  327 ;  Seaman  v.  Fonne-     C.  C.  R.  357. 

reau,  2  Str.  1183.  4  Jbid. 

2  Lynch  v.  Dunsford,  14  East,  494 ; 
Lynch  v.  Hamilton,  3  Taunt.  37. 


382  REPRESENTATION   AND    CONCEALMENT.         [cHAP.  VII. 

aware  of  any  objection  to  this  doctrine,  provided  there  is  no  insu- 
perable obstacle  to  its  practical  application. 

According  to  divers  decisions  and  dicta  in  the  former  jurispru- 
dence, the  insurance  of  the  whole  of  the  subjects,  or  all  the  differ- 
ent subjects,  for  a  single  premium,  or  under  one  valuation,  might 
be  considered  as  presenting  an  objection,  but  as  there  is  not  in 
fact,  usually,  if  there  is  ever,  any  difficulty  in  apportioning  a  pre- 
mium to  divers  subjects  or  parts  of  a  subject,  any  more  than  in 
reference  to  different  periods  or  passages,  I  persuade  myself  that 
this  objection  will  cease,  if  it  has  not  ceased  already,  to  have  any 
weight.  But  suppose  the  premium  not  to  be  apportionable,  the 
result  is  merely  that  the  assured  is  subject  to  an  excessive  rate  of 
premium,  which  is  preferable  to  what  is  often  the  alternative, 
namely,  the  losing  of  the  whole  of  it  for  a  part  of  the  period  of  the 
risk  at  least.  The  better  doctrine  in  the  case  put,  accordingly, 
seems  to  me  to  be,  that 

The  policy  remains  valid  in  reference  to  the  other  subjects  or 
other  parts  of  the  same  subject,  where  different  subjects  or  parts 
are  specifically  distinguishable, 

680.  Whether  a  misrepresentation  or  concealment  in  respect 
of  one  of  the  risks  insured  against,  and  not  affecting  the  others, 
where  the  loss  by  such  risk  is  clearly  distinguishable,  ivill  defeat 
the  policy  in  reference  to  the  other  risks,  the  case  being  free  of 
fraud  ? 

In  accordance  to  the  doctrine  before  stated,  I  agree  with  Mr. 
Duer,i  following  Benecke,  that  the  policy  ought  to  be  held  valid 
in  reference  to  the  other  rislcs. 

This,  and  the  similar  doctrines  before  just  stated,  will  be  found 
to  be  directly,  not  to  say  conclusively,  supported  by  the  juridical 
jurisprudence  on  implied  warranties,  in  reference  to  risks  that  are 
clearly  distinguishable  from  the  others  insured  against. 

681.  Whether  the  assured,  in  order  to  excuse  an  alleged  non- 
compliance with  a  representation,  is  'permitted  to  prove  that  a 
material  misrepresentation  or  concealment  did  not  influence  the 
underwriter  1 

1  2  Marine  Ins.  599. 


SECT.  XX.]  EFFECT   OF  A   CONCEALMENT,   ETC.  383 

Where  the  jury  found  that  a  representation  did  not  influence  the 
underwriter,  Lord  Tenterden  and  liis  associates  considered  it  to  be 
neutralized,  and  put  upon  the  footing  of  an  immaterial  fact.^ 

There  does  not  seem  to  be  any  case  in  which  this  could  be 
proved,  except  that  of  a  revocation  of  the  representation  on  the 
part  of  the  assured,  or  a  waiver  of  its  materiality  on  the  part  of  the 
underwriter.  Neither  of  these  grounds  appears  in  the  case  refer- 
red to.  In  that  case  the  underwriter  at  first  declined  to  subscribe, 
on  the  ground  that  the  vessel  was  to  carry  a  cargo  of  rock-salt. 
The  assured  represented  that  she  would  carry  only  enough  to  put 
her  in  ballast  trim,  whereujion  the  underwriter  subscribed.  She  in 
fact  carried  a  full  cargo.  To  cancel  this  representation,  a  certifi- 
cate, procured  at  the  suggestion  of  the  brokers  at  whose  office  the 
policy  was  underwritten,  that  she  was  strong,  stiff,  staunch,  sea- 
worthy, and  fit  to  carry  a  cargo  of  rock-salt,  was  proved.  This 
could  cancel  the  representation  only  on  the  ground  that  it  was  im- 
material whether  the  particular  vessel  carried  a  full  cargo  of  salt, 
or  only  enough  to  put  her  in  ballast  trim.  But  the  case  admits 
that  the  representation  was  material,  that  is,  that  it  made  a  differ- 
ence. It  is  possible  that  the  underwriter  waived  his  objection  on 
his  attention  being  called  to  the  certificate,  but  the  report  does  not 
show  this. 

Notwithstanding  this  decision,  I  conclude  that  a  material  mis- 
representation will  defeat  the  policy,  wholly  or  in  part,  unless  it 
is  withdrawn  by  the  assured,  or  its  materiality  is  waived  by  the 
insurer,  or  it  becomes  inniiaterial,  or  compliance  with  it  is  rendered 
illegal. 

682.  The  non-communication  or  misrepresentation  of  material 
facts,  though  it  be  through  mistake  or  forgetfulness,  and  without 
any  fraudulent  purpose,  has  nevertheless  the  effect  to  defeat  the 
contract.'^ 

683.  Whether,  in  a  retrospective  insurance,  a  concealment  or 
misrepresentation  of  ivhat  occurred  subsequent  to  the  time  from 
which  the  risk  purports  to  be  assumed  by  the  policy  will  de- 
feat it  1 

1  Flinn  v.  Headlam,  9  B.  &  C.  693.      2  Bridges  v.  Hunter,  1  M.  &  S.  15. 


384  REPRESENTATION   AND    CONCEALMENT.  [CHAP.  VII. 

A  decision  by  Lord  Ellenborough  and  his  associates  has  refer- 
ence to  the  question  just  stated.  It  was  an  insurance  in  London, 
on  a  ship,  "lost  or  not. lost,  at  and  from  the  port  of  loading  in 
Jamaica"  to  the  United  Kingdom;  the  ship  having  been  heard 
from  at  her  loading  port,  Manchineal,  in  that  island.  The  captain 
omitted  to  mention  in  his  letter  received  by  the  owner  before  he 
effected  the  insurance,  that  the  ship  had  been  driven  upon  a  rock 
in  that  harbor,  and  had  been  got  off  without  having  apparently 
sustained  material  damage. 

Here  the  policy  purported  that  the  insurers  assumed  the  risk 
from  a  time  anterior  to  the  accident.  The  alternative,  therefore, 
seemed  to  be,  that  the  insurers  must  be  liable  for  the  damage  sus- 
tained from  the  time  of  the  vessel's  arrival  at  Manchineal,  or  be 
discharged  from  the  policy  entirely.  The  court  considered  the 
non-communication  of  the  fact  of  the  accident  as  a  material  con- 
cealment ;  without,  however,  any  imputation  of  fraud,  either  to  the 
assured  or  the  master.  But  instead  of  assigning  the  ordinary  effect 
to  the  concealment,  by  holding  that  it  wholly  defeated  the  policy, 
they  held  that  it  had  the  effect  to  exonerate  the  underwriters  from 
liability  for  the  damage  occasioned  by  the  accident.  Lord  Ellen- 
borough  remarks,  "If  the  principle  be  new,  it  is  consistent  with 
justice  and  convenience."^  It  subsequently  appeared,  on  a  sur- 
vey after  arrival  at  London,  that  she  had,  by  the  accident,  sus- 
tained damage  to  keel  and  other  parts,  amounting  to  fifteen  per 
cent. 

Assuming,  with  the  court,  the  fact  to  be  material,  and  the  obli- 
gation of  the  assured  to  communicate  it,  and  considering  that  it 
affected  the  whole  risk  for  the  whole  voyage,  the  conclusion  seems 
to  follow,  that 

The  ijolicy  was  void. 

634.  A  non-compHance  ivith  a  promissory  representation  sub- 
sequently to  both  the  time  of  making  the  policy  and  the  commence- 
ment of  the  risky  does  not  render  the  policy  void,  but,  like  a  devi- 
ation, discharges  the  insurers,  at  the  most,  only  from  liability  for 
any  subsequent  loss,  and  leaves  them  liable  to  prior  losses. 

1  Gladstone  v.  King,  1  M.  &  S.  35. 


SECT.  XX.]      EFFECT  OF  A  CONCEALMENT,  ETC.  385 

This  results  necessarily  from  the  fact  that  the  underwriters  are 
by  all  policies  liable  for  the  payment  of  the  loss  in  a  certain  time 
after  demand  and  proof,  which  time  may  have  expired  before  the 
non-compliance. 

685.  Whether  temporary  non-com'pliance  with  a  representation, 
subsequently  to  the  commencement  of  the  risTc,  will  discharge  the 
insurers  absolutely  ? 

Where  a  representation  has  a  continuing  character,  or  refers  to 
circumstances  subsequent  to  the  commencement  of  the  risk,  there 
is  no  precedent  or  principle  against  the  revival  of  the  risk,  after  its 
temporary  suspension  by  a  temporary  non-compliance  with  the 
representation  without  fraud,  provided  such  temporary  non-compli- 
ance has  no  effect  in  enhancing  or  changing  the  subsequent  perils. 
Analogy  to  the  doctrine  relative  to  temporary  non-compliance 
with  the  implied  warranty  of  seaworthiness,  is  a  ground  of  confi- 
dent inference  that  the  underwriters  are  not  absolutely  discharged 
by  such  non-compliance,  but,  on  the  contrary,  that,  in  such  case, 
the  risJc  revives  after  the  non-compliance  ceases.^ 

1  See  2  Duer,  Ins.  697 ;  1  Arnould,  Ins.  525, 


VOL.  I.  33 


CHAPTER   VIII. 
IMPLIED  TTARRAXTIES,  CONDITIONS,   AND    STIPULATIONS. 
Sect.  1.  TVhat  -n-arranties,  conditions,  and  i  Sect.  4.  Belligerent  risks. 


stipulations  are  implied. 

2.  Seaworthiness  of  the  ship. 

3.  Leeal  conduct. 


5.  The  abrogation  of  an  implied 
warrantT,  condition,  or  stipu- 
lation. 


SECTION*    I.       WHAT    WARRANTIES,    CONDITION'S,    AND    STIPULATIONS 

ARE    IMPLIED. 

6S6.  Ati  imjpUed  warranty,  condition,  or  stipulation,  is  an 
agreement  not  exjjressed  in  the  policy,  but  presumed  from  the 
fact  of  mahing  the  insurance. 

It  is  distinguished  from  a  representation  by  the  circumstance, 
that  the  latter  is  usually  expressed,  either  in  writing  or  verbally, 
or  is  the  result  of  the  phraseology  used,  and  does  not  arise  on  the 
mere  fact  of  effecting  the  policy. 

681.  The  doctrine  of  misrepresentation  and  concealment  involves 
the  principle  of  an  implied  warranty  or  condition  ;  they  avoid  the 
policy  because  there  is  an  implied  agreement  of  the  assured  to 
malce  a  fair  disclosure  of  the  circumstances  affecting  the  rish',  and 
the  insurer  subscribes  upon  the  condition  that  he  has  complied  with 
this  agreement. 

688.  So  it  has  been  held  to  be  an  implied  condition  that  inte- 
rests of  a  certain  description  must  be  disclosed,  either  in  the  policy 
or  otherwise. 

The  interest  of  a  lender  on  bottomry  or  respondentia,  as  we 
have  seen,  must  be  insured  as  such.^ 

So  the  other  kinds  of  interest,  such  as  belligerent  or  contraband, 
of  which,  as  before  stated,  notice  to  the  underwriter  is  requisite, 
must  be  specified  in  the  policy,  if  notice  of  them  is  not  otherwise 
given. 

'  Supra,  No.  427. 


SECT.  I.]  WHAT  WARRANTIES   ARE   IMPLIED.  387 

It  has  been  held  by  the  Supreme  Court  of  the  United  States, 
that  the  same  condition  is  apphcable  to  a  policy  on  the  interest  of 
a  mortgagee;  of  which  it  is  said  that  "no  policy  can  be  deemed  a 
policy  exclusively  upon  the  interest  of  the  mortgagee,  unless  the 
company  has  notice  that  it  is  so  designed."^  But  the  decisions  in 
reference  to  the  description  of  the  subject,^  the  ruling  of  Tindal, 
C.  J.,  and  others  of  the  English  Common  Pleas,*^  have  quite  a  con- 
trary aspect,  and  go  to  the  doctrine  that  such  an  interest  need  not 
be  described  in  the  policy,  or  disclosed  by  representation.  This  is 
in  conformity  to  the  liberal  spirit  of  commercial  jurisprudence  intro- 
duced by  Lord  Mansfield,  and  more  prevalent  recently  both  in  Eng- 
land and  the  United  States,  discountenancing  and  tending  to  dis- 
card superfluous  conditions  and  distinctions. 

689.  The  doctrine  of  deviation,  to  be  hereafter  more  particularly 
considered,  is  founded  on  an  implied  understanding  between  the 
parties,  arising  on  the  fact  of  making  the  insurance,  that  the  adven- 
ture is  to  be  pursued  in  the  usual  maimer,  or,  in  other  words,  that 
the  risks  are  to  be  such  as  vessels  are  usually  subject  to,  and  not 
voluntarily  varied  by  the  assured  or  those  wliose  acts  and  neglects 
are  imputable  to  him. 

690.  Upon  the  same  principle  upon  which  the  doctrine  of  devi- 
ation is  founded,  it  is  an  imjjlied  understanding  that  the  risTc  is 
to  commence  within  a  reasonable  time,  unless  the  policy  contains 
some  express  provision  on  the  subject ;  and  unless  it  is  so  com- 
menced, the  contract  will  be  forfeited. 

A  policy  was  effected  in  London,  on  freight  at  and  from  Sinca- 
pore  and  Batavia  to  London,  dated  on  the  28th  of  February,  1824. 
The  ship  had  sailed  from  England  on  the  outward  voyage  in  Sep- 
tember, 1823.  Owing  to  delays,  partly  unnecessary,  on  the  out- 
ward voyage,  the  ship  did  not  arrive  at  Sincapore  until  the  30th  of 
March,  1825,  and  sailed  thence  on  the  3d  of  May  following.  Tin- 
dal, C.  J.:  "We  are  of  opinion  that  such  unreasonable  and  unjus- 
tifiable delay,  on  the  part  of  the  assured,  in  commencing  the  voyage, 


i  Per  Story,  J.,  16  Peters's  Sup.  Ct.        2  Supra,  No.  421,  42-2. 
495,  at  p.  505,  in  Carpenter  v.  Provi-        3  pim  v.  Reid,  6  Mann.  &  Gr.  1. 
donee  Wasbinston  Ins.  Co. 


388  IMPLIED   WARRANTIES,    CONDITIONS,   ETC.      [CHAP.  VIII. 

is  in  the  nature  of  a  deviation,  and  does  amount  to  such  an  alter- 
ation of  the  risk  insured  against,  as  to  discharge  the  underwriter. 
He  has  as  much  right  to  calculate  upon  the  outward  voyage  being 
performed  in  a  reasonable  time  and  without  unnecessary  delay,  in 
order  that  the  risk  may  attach,  as  that  the  voyage  insured  shall  be 
commenced  within  a  reasonable  time  after  the  risk  has  attached. 
In  either  case  the  effect  is  the  same  as  to  the  underwriter,  who 
has  another  risk  substituted  instead  of  that  which  he  has  insured 
against."  ' 

A  decision  similar  in  principle  was  made  in  case  of  a  charter- 
party,  where  the  owner  did  not  have  the  ship  at  the  place  agreed 
upon  in  reasonable  time.-     The  doctrine  is  general. 

691.  It  is  always  implied  that  no  indemnity  is  to  be  made,  for 
loss  by  the  specified  perils,  on  property  held  in  contravention  of 
law,  or  employed  in  an  illegal  adventure  or  use,  or  for  loss  incur- 
red by  the  illegal  acts  of  the  assured.^ 

It  has  been  sometimes  stated  to  be  an  implied  warranty,  that 
the  assured  shall  comply  with  the  laws  in  the  prosecution  of  the 
adventure  ;*  but  this  is  too  broad  a  statement  of  the  doctrine,  as 
already  remarked,  for  the  policy  is  not  forfeited  by  an  incidental, 
collateral,  illegal  act.^ 

692.  It  is  also,  as  will  subsequently  more  fully  appear,  an  im- 
plied understanding  of  the  parties  to  the  policy,  that  the  under- 
ivriters  are  not  liable  for  loss  occasioned  by  the  perils  insured 
against,  in  direct,  obvious,  and  necessary  consequence  of  the  un- 
justifiable acts  or  neglects  of  the  assured  or  of  the  agents  for 
whose  conduct  he  is  responsible.  The  extent  of  his  responsi- 
bility is  a  subject  of  inquiry  under  the  head  of  Risks,  and  that  of 
Agents. 

693.  It  is  an  understood  condition  of  every  policy,  that  if  the 

1  Mount  v.  Larkins,  8  Bing.  108.  establishing  the  doctrine  of  Mount  v. 

Mr.  Chief  Justice  Timlal   cites   and  Larkins. 

comincnLs  upon  Smith  t*.  Surridge,  4  ~  Freeman  v.  Taylor,  8  Bing.  124. 

Esp.  25 ;  Hartly  v.  Buggin,  Park,  Ins.  3  Sec  chap.  3,  sec.  2. 

52.'J ;  Vallance  v.  Dcwar,  1  Camp.  503  ;  4  Per   Tindal,  C.  B.,  in   Sadler  v. 

Ougicr  r.  Jennings,  1  Camp.  505,  n.;  Dixon,  8  Mees.  &  W.  895. 

and  Hull  r.  Cooj)cr,  14  East,  471);  as  ^  gee  chap.  3,  sec.  2. 


SECT.  II.]  SEAWORTHINESS    OF   THE    SHIP.  389 

assured  proves  to  have  no  insurahle  interest  in  the  subject  de- 
scribed, or  if  the  subject  is  never  liable  to  the  risks  insured  against, 
the  policy  is  to  he  cancelled,  and  in  the  absence  of  fraud  on  the 
part  of  the  applicant,  the  premium  is  to  be  returned. 

694.  The  implied  warranties  which  most  frequently  come  into 
discussion  are  those  of  the  seaworthiness  of  the  ship  and  the  neu- 
tral character,  and  the  neutral  and  legal  conducting  of  the  adven- 
ture. 


SECTION    II.       SEAWORTHINESS    OF    THE    SHIP. 

695.  In  a  marine  insurance,  whether  it  he  on  the  ship,  freight, 
or  cargo,  or  the  commissions  or  profits  to  accrue  upon  the  cargo, 
the  assured  is  understood  impliedly  to  warrant,  hy  the  mere  fact 
of  effecting  the  insurance,  independently  of  the  particular  terms 
used,  that  the  ship  is  at  the  commencement  of  the  voyage  seaivor- 
thy  ;  namely,  that  the  materials  of  which  the  ship  is  made,  its 
construction,  the  qualifications  of  the  captain,  the  numher  and 
description  of  the  crew,  the  tackle,  sails,  and  rigging,  stores, 
equipment,  and  outfit,  generally,  are  such  as  to  render  it  in  every 
respect  fit  for  the  proposed  voyage  or  serviced 

A  similar  warranty  is  implied  in  river,  lake,  and  canal  naviga- 
tion.2 

696.  If  the  ship,  owing  to  some  material  deficiency,  other  than 
a  merely  incidental  one,  temporary  in  character  and  admitting  of  a 
ready  remedy,^  is  not,  or  was  not  at  the  time  referred  to  hy  the 
warranty,  such  as  the  assured  is  understood,  by  effecting  the  policy, 
to  warrant,  the  condition  on  which  the  liability  of  the  underwriter 
wholly  or  partially  depends  is  forfeited. 

697.  This  warranty  extends  to  the  qualities  and  defects  of  the 


1  Lee  V.  Beach,  Park,  342  ;  Marsh.        ^  Firemens'  Ins.  Co.  v.  May,  20  Ohio 
160;    Oliver  v.  Cowley,  Park,  343;     R.  (by  Lawrence)  211. 
Marsh.  161;  Warren  v.  United  Ins.         3  See  infra,  No.  726. 
Co.,  2  Johns.  231 ;  Prescott  v.  Union 
Ins.  Co.,  1  Whart.  K.  399. 

33* 


390  IMPLIED   WARRANTIES,   CONDITIONS,   ETC.      [CHAP.  VIII. 

vessel,  unknou')i,  and  that  could  not  have  been  knou-n,  no  less 
than  those  known,  to  the  assured.^ 

698.  This  or  any  other  implied  obligation  may  be  modified, 
enlarged,  or  superseded  by  express  agreement : 

As  where  it  is  provided  that  any  insufficiency  of  the  ship,  not 
known  to  the  assured,  shall  not  prejudice  the  insurance  :  ^ 

So  where  by  the  policy  the  ship  is  "admitted  to  be  seaworthy 
for  the  voyage,"  ^  in  case  of  damage  and  the  ship  not  being  worth 
repairing,  the  underwriters  are  precluded  from  alleging  its  decayed 
state  in  defence  against  a  claim  for  loss. 

A  mutual  insurance  company  cannot  by  a  vote  add  an  implied 
condition  to  a  policy  previously  issued  to  one  of  its  members.'* 

The  policy  being  on  the  "good  ship"  H,  this  designation  is  not 
an  express  or  implied  warranty  of  seaworthiness.^ 

699.  Where  the  risk  commences  binder  the  policy  at  the  original 
port  of  departure,  a  compliance  icith  this  implied  icarranty  is 
generally  a  condition  precedent  on  which  the  fact  of  the  policyh 
attaching  depends.  This  doctrine  pervades  the  whole  jurispru- 
dence on  the  subject.^ 

700.  To  render  a  ship  seaworthy,  it  must  be  stanch  and  of 
sound  materials  ;  or  rather,  it  must  be  sufficiently  stanch  and  sound 
for  the  service  or  use  intended  by  the  insurance. 

A  ship,  of  which  "  the  timbers  were  decayed  and  the  iron-work 
wrought  loose,"  was  considered  not  to  be  seaworthy." 

1  :M"Cargo  r.  ]Merchants'  Ins.  Co.,  Brown  &  Co.)  299  ;  S.  C,  20  Eng. 
10  Rob.  (La.)  R.  334  ;  and  see  cases  Law  Jour.,  (x.  s.)  Q.  B.  152;  and  15 
generally.  Eng.  Jurist,  325. 

2  Vallejo  1-.  Wheeler,  Cowp.  143.  ^  See  Mills  v.  Roebuck,  Park,  335 ; 

3  Parfitt  V.  Thompson,  13  Mees.  &  Bermon  v.  "Woodbridge,  Doug.  781 ; 
W.  392  ;  Phillips  v.  Nairne,  1  Arnould,  Watson  v.  Clark,  1  Dow.  344  ;  Hucks 
Ins.  CC2;  S.  C,  16  Law  Jurist,  Com.  r.  Thornton,  1  Holt,  30;  Garrigues 
PI.  194.  V.  Coxe,  1  Binn.  592 ;  Patrick  f.  Hal- 

*  New  England  Mut.  Fire  Ins.  Co.  lett,  1  Johns.  241 ;  Petei*s  v.  Phanix 
V.  Butler,  Sup.  Ct.  of  Maine,  1853,  Ins.  Co.,  3  Serg.  &  Rawle,  25 ;  Plan- 
cited  supra.  No.  413  a.  tamour  r.  Staples,  1  T.  R.  611,  n.;  3 

5  Per  Parke,  B.,  Small  r.  Gibson,  Doug.  1. 
3  Eng.  Law  &  Eq.  R.  (Press  of  Little,        "  Douglas  v.  Scougall,  4  Dow,  269. 


SECT.  II.]  SEAWORTHINESS    OF   THE    SHIP.  391 

701.  The  ship  must  he  adequately  constructed. 

A  vessel  constructed  without  knees  was  held  not  to  be  seawor- 
thy for  a  foreign  voyage.^ 

The  question  occurred  in  Pennsylvania,  whether  the  want  of 
cabin-doors,  for  which  sliders  had  been  substituted,  and  the  want 
of  a  tarpauling  covering  of  the  hatches,  make  a  vessel  unsuitable 
for  the  navigation  of  Lake  Erie.  Tilghman,  C.  J.,  seemed  to  be 
of  opinion,  that  these  circumstances  did  not  make  the  vessel  unfit 
for  this  service.^ 

In  case  of  a  vessel's  being  run  upon  a  rock  in  going  out  of  Bos- 
ton harbor,  in  consequence  of  the  needle  of  the  compass  being 
drawn  out  of  its  direction  two  or  three  points  by  an  iron  fastening 
near  the  compass,  which  defect  could  easily  be  remedied,  the  in- 
surers objected  to  paying  the  loss,  on  the  ground  that  it  rendered 
the  vessel  unseavvorthy.  It  appeared  by  the  testimony  of  sundry 
witnesses,  that,  notwithstanding  the  utmost  care  on  the  part  of  the 
owners  and  master,  iron-work  will  sometimes  come  so  near  to  the 
compass  as  to  cause  a  variation,  and  there  being  no  negligence  in 
this  case,  the  court  seemed  to  acquiesce  in  the  opinion  of  the  wit- 
nesses, that  the  circumstance  did  not  render  the  vessel  unseawor- 
thy.3 

702.  The  ship  must  he  sufficiently  furnished  with  sails,  tacTcle, 
rigging,  cables,  and  anchors. 

A  vessel  was  considered  not  to  be  seaworthy,  of  which  "the 
maintop-galiant-sail  and  studding-sails  were  extremely  rotten  and 
unserviceable,"  in  consequence  of  which  deficiency  she  fell  behind 
the  convoy  and  was  lost.^ 

So  a  vessel  was  considered  to  be  unseaworthy,  of  which  the  best 
bower  anchor  and  the  cable  of  the  small  bower  were  defective.^ 

703.  Sufficient  stores  and,  supplies  are  requisite  to  seaworthi- 
ness. 

A  vessel  not  properly  supplied  with  fuel  and  candles  was  held 
not  to  be  seaworthy.^ 

1  Watt  V.  Morris,  1  Dow,  32.  ^  Wedderburn  v.  Bell,  1  Camp.  1. 

2  Bell  V.  Reed,  4  Binn.  127.  5  Wilkie  v.  Geddes,  3  Dow,  60. 

3  Stanwood  v.  Rich,  S.  J.  C.  Mass.,  ^  Fontaine  v.  Phoenix  Ins.  Co.,  10 
Suffolk,  November,  1817.  Johns.  58. 


392  IMPLIED    WARRANTIES,  CONDITIONS,   ETC.      [CHAP.  VIII. 

If  a  medicine-chest  is  a  part  of  the  usual  outfit  for  the  voyage 
insured,  it  is  questionable  whether  the  ship  is  seaworthy  without 
one.^ 

The  outfit  must  be  such  as  is  requisite  for  the  voyage  and  season. 

A  voyage  in  a  northern  climate  in  the  winter,  for  instance,  re- 
quires a  different  outfit  for  the  accommodation  of  the  crew  from 
what  is  necessary  in  the  warm  season,  or  for  a  southern  voyage.^ 

What  is  a  proper  outfit  to  make  the  ship  seaworthy  for  a  voyage 
depends  very  much  upon  usage. 

We  have  already  seen  that  a  contravention  of  law  in  some  col- 
lateral, incidental  transaction  in  the  course  of  the  voyage,  does  not 
defeat  the  policy .3  So,  in  respect  of  the  outfit  of  the  ship,  a  non- 
compliance with  the  law  in  some  particular,  as  in  a  foreign  voyage 
from  Mansanilla  to  the  United  States,  not  having  under  deck  the 
quantity  of  water  required  by  an  act  of  Congress,^  was  held  not  to 
vitiate  the  policy  on  the  vessel,  the  quantity  of  water  on  board, 
and  manner  of  stowing  it  on  deck,  being  in  conformity  to  the  usage 
in  the  voyage.^ 

704.  The  proper  stoivage  of  the  cargo,  and  spare  sails,  rigging, 
tackle,  and  necessary  furniture  of  the  vessel,  is-  requisite  to  sea- 
worthiness, so  far  that  it  must  conform  to  the  usage  of  the  trade  to 
all  practical  purposes  material  to  the  risk,  and  must  not  materially 
and  continuedly  embarrass  the  navigation  and  endanger  the  safety 
of  the  vessel.*^ 

A  case  before  cited  "^  recognizes  the  force  of  usage,  as  to  the 
stowage  of  supplies. 

Underwriters  were  held  not  to  be  liable  for  the  loss  of  a  hawser 
stowed  in  the  boat  on  deck,  thus  assuming  that  proper  stowage  is 
necessary,  though  the  question  of  .seaworthiness  was  not  made  in 
the  case.® 

1  Woolf  V.  Claggett,  3  Esp.  257.  6  Chase  v.  Eagle  Ins.  Co.  5  Pick.  51. 

~  Watt  V.  Morris,  1  Dow,  R.  32.  '  Warren  v.  Manufacturers' Ins.  Co., 

3  Supra,  No.  221 ;  Clark  v.  Protcc-    18  Tick.  518. 

tion  Ins.  Co.,  1  Story's  K.  109.  8  Brooks  v.  Oriental  Ins.  Co.,  7  Pick. 

4  1790,  c.  56,  s.  9,  edited  by  Story,    259 ;  and  see  Roc.  n.  22. 
Vol.  1.  p.  lOG. 

5  Warren  u.  Manufacturers' Ins.  Co., 
13  Pick.  518. 


SECT.  II.]  SEAWORTHINESS   OF   THE   SHIP.  393 

705.  The  vessel  must  not  be  overloaded,  whether  in  inarine,^ 
or  in  river,  lake,  or  canal  navigation.^ 

706.  Insufficiency  of  ballast  renders  the  vessel  unseaworthy.^ 

707.  It  is  requisite  that  the  shij)  should  have  a  competent  mas- 
ter and  officers,  according  to  the  service  upon  which  if  is  employed.^ 

The  English  Court  of  King's  Bench,  was  inclined  to  hold  a 
vessel  not  to  be  seaworthy,  the  captain  of  which,  for  a  voyage 
within  the  Straits  of  Gibraltar  as  far  up  as  Tarragona,  from  igno- 
rance of  the  coast,  mistook  Barcelona  for  Tarragona.^ 

708.  The  sTcill  in  navigation  of  the  master  or  other  persons  on 
board,  requisite  to  seaworthiness,  must  depend  upon  the  particular 
voyage. 

'  Lord  Tenterden  was  of  opinion,  that  a  ship  was  not  seaworthy 
for  a  voyage  from  Madras  to  London,  having  no  one  on  board 
capable  of  navigating  her,  excepting  the  captain.^ 

Whether  the  master  or  some  one  on  board  must  have  sufficient 
skill  to  take  an  observation,  depends  upon  the  voyage  and  the 
usage  of  the  particular  trade."" 

709.  It  is  essential,  that  a  sufficient  crew  should  be  provided  at 
the  commencement  of  the  voyage.^ 

A  vessel  of  about  thirty-five  or  forty  tons  burden,  with  three 
sails,  v/as  considered  not  to  be  seaworthy  for  a  voyage  from  New 
York  to  Eden  ton,  in  South  Carolina,  with  no  other  crew  than  the 
master  and  one  seaman.^ 

A  ship  engaged  on  a  whaling  and  sealing  voyage,  and  having  a 
letter  of  marque,  was  insured  from  a  certain  date,  at  which  time 


'  Weir  V.  Abcrdein,  2  B.  &  Aid.  no  doubt,  so  far  as  bis  character  has 

320.  relation  to  his  employment. 

SFiremens'  Ins.    Co.    v.  May,  20  5  Tait  ?;.  Levi,  14  East,  481. 

Ohio  R.  (by  Lawrence)  211.  6  Clifford  v.  Hunter,  3  C.  &  P.  16 ; 

3  Deblois  v.  Ocean  Ins.  Co.,  16  Pick.  1  M.  &  M.  103. 

303 ;  Dixon  v.  Sadler,  5  Mees.  &  W.  ^  Treadwell  v.  United  Ins.  Co.,  6 

414 ;  Sadler  r.  Dixon,  8  id.  895.  Cowen,  270. 

4  Walden  v.  Fire  &  Mar.  Ins.  Co.,  8  Busk  v.  Royal  Exch.  Ass.  Co.,  2 
1 2  Johns.  128,  where  Piatt,  C.  J.,  says  B,  &  Aid.  73. 

the  assured  must  "employ  a  captain  ^  Dow  v.  Smith,  1  Caines,  32.    See 

of  general  good  character ;"  meaning.  Hunter  v.  Potts,  Selw.  N.  P.  907,  n. 


394  IMPLIED   WARRANTIES,    CONDITIONS,   ETC.      [CHAP.  VIII. 

she  had  a  sufficient  crew  for  sealing  and  other  purposes  of  the 
voyage,  except  whale-fishing  ;  and  she  afterwards  pursued  only 
sealing.  Gibbs,  C.  J.:  "If  the  ship  had  a  competent  crew  to 
pursue  any  part  of  her  adventure,  it  being  at  her  election  to  pur- 
sue what  part  she  chose,  she  might  be  deemed  seaworthy."  ^ 

710.  It  is  generally,  though  not  in  all  cases,  requisite  that  a 
sufficient  creiv  for  the  ivhole  voyage  should  he  shipped  at  the 
outset. 

The  question  whether  the  original  shipment  of  a  full  comple- 
ment of  men  for  the  whole  voyage  or  period  of  the  risk  is  neces- 
sary to  seaworthiness,  like  other  questions  relative  to  this  subject, 
depends  upon  usage  and  the  particular  voyage,  and  circumstances. 
The  commencement  of  the  voyage  being  down  the  Plaquimin 
river,  in  North  Carolina,  the  Supreme  Court  of  New  York  were  of 
opinion,  from  the  evidence,  that  one  man,  with  the  captain,  was 
sufficient  for  descending  the  river,  though  two  were  requisite  for 
the  rest  of  the  voyage  to  New  York.^ 

The  degree  of  probability,  amounting  almost  to  certainty  in 
many  cases,  that  hands  may  be  had  at  ports  where  the  ship  is  to 
touch,  will  materially  affect  the  question.  , 

For  these  reasons,  I  have  stated  the  doctrine  as  above,  that  it  is 
"generally"  requisite  to  have  a  sufficient  crew  shipped,  and  that 
the  vessel  shall  be  otherwise  seaworthy  for  the  whole  voyage,  at 
the  outset,  notwithstanding  that  a  part  of  the  navigation  requires 
fewer  hands,  or  the  voyage  includes  stopping  at  intermediate  ports.^ 
Under  a  policy  on  goods  from  Wilmington,  in  North  Carolina, 
to  Falmouth,  in  England,  a  part  of  the  crew  were  shipped  for  New 
York,  at  which  port  it  was  proposed  to  touch  on  the  voyage,  and 
a  loss  occurred,  and  the  ship  foundered,  before  coming  to  the  divid- 
ing point  of  the  course  direct  to  Falmouth  and  that  to  New  York. 
It  was  held  in  New  York,  that  the  underwriters  were  exonerated, 
on  the  ground  of  unseaworthiness.^ 

It  was  remarked  in  this  case,  by  INIr.  Justice  Kent,  that  "the 


'  Ilucks  V.  Thornton,  1  Holt,  30.  3  Alexander   v.   Pratt,  1   Arnould, 

2  Tread  well  v.  Union   Ins.  Co.,  G     Ins.,  part  2,  c.  4,  sub.  s.  248,  p.  670. 
Cowen,  270.  4  Silva  v.  Low,  1  Johns.  Cas.  198. 


SECT.  II.]        SEAWORTHINESS  OF  THE  SHIP.  395 

master  was  under  a  moral  disability  to  go  to  Falmouth,  and  this 
was  equivalent  to  a  physical  incompetency  to  perform  the  voyage." 
But  if  the  ship  had  not  foundered,  the  master  might  have  obtained 
the  consent  of  the  men  so  shipped  to  go  to  Falmouth,  or  he  might 
have  broken  his  agreement  with  those  men,  which,  though  wrong, 
would  have  been  a  matter  inter  alios  in  reference  to  the  parties  to 
the  policy.  The  decision  does  not  accord  to  the  rule  that  we  shall 
find  to  be  adopted  in  respect  of  deviation. 

A  ship  and  cargo  were  insured  "at  and  from"  the  loading  port 
in  Cuba,  to  Liverpool,  with  liberty,  "in  that  voyage,  to  proceed 
and  sail  to,  and  touch  and  stay  at,  any  ports  and  places  whatever." 
The  vessel  had  made  an  outward  passage  from  Liverpool,  and, 
some  of  the  crew  having  been  lost  by  sickness  before  leaving  Cuba, 
the  master,  not  being  able  to  find  others  there  to  supply  all  their 
places,  shipped  two  for  Jamaica,  and  put  in  at  Montego  Bay  to 
land  those  two  and  ship  two  others.  The  vessel  was  held,  by 
three  of  the  judges  of  the  English  Common  Pleas,  namely,  Dallas, 
Park,  and  Burrough,  to  be  unseaworthy,  though  Park,  J.,  said  he 
had  changed  his  opinion  since  coming  into  court.  Richardson,  J., 
withheld  his  opiaion  on  this  question.^ 

Mr.  Justice  Washington  also  assumes  the  same  doctrine  as  to 
an  equal  strictness  of  compliance  with  this  warranty,  whether  the 
risk  under  the  policy  begins  at  a  foreign  or  other  home  port.^ 

The  correctness  of  the  decision  of  the  English  Common  Pleas 
is  very  questionable,  whether  examined  by  the  jurisprudence  of 
England  or  that  of  the  United  States,  on  two  grounds  ;  namely, 
that,  as  the  policy  was  at  and  from  the  loading  port,  and  some  of 
the  hands  were  lost  there,  the  master  was  authorized  to  take  what- 
ever measures  were  necessary  to  supply  the  deficiency,  without 
forfeiting  the  insurance;-^  and,  second,  that,  as  the  voyage  had 
been  out  and  home,  though  the  risk  commenced  at  the  foreign  port, 
the  warranty  of  seaworthiness  was  not  subject  to  the  same  strict- 


1  Forshaw  v.  Chabert,  3  B.  &  B.  ^  ihld. ;   Motteux  v.  London  Ass. 
158.  Co.,  1  Atk.  545 ;   Smith  v.  Surridge, 

2  Cruder  v.  Philadelphia  Ins  Co.,  2  4   Esp.    25  ;   and  other  cases  cited 
Wash.  C.  C.  R.  262.  infra. 


396  IMPLIED   WARRANTIES,   CONDITIONS,   ETC.      [CIIAP.  VIII. 

ness  of  construction  in  reference  to  that  port,  as  in  reference  to  the 
port  of  departure  on  the  outward  voyage. ^ 

711.  If  a  sujicieni  crew  is  originally  shipped,  an  occasional 
disability,  absence,  or  deficiency  of  the  men,  does  not  violate  this 
ivarranty.^ 

712.  When  a  vessel  is  on  ground  %uhere  it  is  usual  to  take  a 
pilot,  a  professional  pilot,  or  some  person  on  board  who  has  ade- 
quate knowledge  and  skill  in  the  local  navigation  to  direct  the 
course,  is  necessary  to  seaworthiness,  just  as  a  competent  master, 
and  officers,  and  a  sufficient  crew,  are  so  in  general. 

The  pilots  appointed  by  authority  are  presumed  to  be  compe- 
tent, and  if  such  a  one  is  taken,  and  the  vessel  is  left  to  his  guid- 
ance, this  warranty  is  satisfied.^ 

It  is  true,  that,  if  such  a  pilot  is  at  the  time  grossly  unfit  to  be 
intrusted  with  the  navigation  of  the  vessel,  for  instance,  by  intoxi- 
cation, criminal  intent,  or  vicious  or  malignant  perverseness,  it 
may  be  the  duty  of  the  master,  as  in  other  emergencies,  to  exer- 
cise his  discretion  as  to  the  course  and  management  of  the  vessel. 
The  usual,  and  ordinarily  more  prudent  course,  is  to  permit  the 
vessel  to  be  conducted  by  the  pilot.  At  any  rate,  the  warranty 
of  seaworthiness  is  satisfied  by  his  being  on  board,  and  the  ques- 
tion that  arises,  if  any,  in  case  of  the  interposition  of  the  master  in 
conducting  the  vessel,  is  not  that  of  unseaworthiness  for  want  of  a 
pilot. 

713.  If  the  vessel  is  piloted  by  the  master  or  other  person  on 
board,  of  competent  skill,  into  or  out  of  port,  or  over  any  pilot 
ground,  the  warranty  of  seaivorthiness  is  satisfied,  though  he  is 
not  a  publicly  authorized  pilot. 

In  sucli  case  the  competency  is  not,  as  in  that  of  a  publicly 
authorized  pilot,  presumed,  but  must  be  proved.* 

1  See  infra,  No.  728.  Hill,  250  ;  Flanigen   v.  Washington 

2  Per  Bailey,  J.,  Busk  t-.  Royal  Ins.  Co.,  7  Penn.  R.  307;  M'Millan  t;. 
Exch.  Ass.  Co.,  2  B.  &  Aid.  73.  See  Union  Ins.  Co.,  Rice's  R.  249.  In 
also  Bishop  v.  Pcntland,  7  B.  &  C.  Whitney  v.  Ocean  Ins.  Co.,  14  La.  R. 
219  ;  1  M.  &  R.  49.  485,  it  was  held  that  the  vessel  is  not 

3  Law  V.  IloUiiigsworth,  7  T.  11. 160.  seaworthy  without  an  authorized  pilot, 

4  Keeler  v.  Firemens's  Ins.  Co.,  3  though  the  master  is  a  good  pilot. 


SECT.  II.]  SEAWORTHINESS   OF  THE   SHIP.  397 

714.  If  a  'person  representing  himself,  and  believed  by  the 
master,  to  he  a  qualified  pilot,  is  taken,  the  warranty  of  seaworthi- 
ness is  satisfied,  though  he  is  in  fact  not  qualified.^ 

715.  As  the  master  can  always  obtain  a  pilot,  where  it  is  usual 
to  take  one,  in  going  out  of  a  harbor,  the  vessel  will  not  be  sea- 
worthy without  one? 

It  was  so  ruled,  even  where  the  pilot  refused  to  pilot  a  vessel 
out  immediately,  on  account  of  the  difficulty  of  getting  back,  it 
being  afternoon,  in  the  state  of  the  weather  at  the  time.^ 

716.  If,  on  arriving  off  a  port,  on  signal  given,  or  waiting  a 
reasonable  time  according  to  the  circumstances,  no  pilot  offers,  the 
captain  may,  as  in  other  emergencies,  use  his  discretion  as  to  stand- 
ing off  or  entering  without  a  pilot,  and  his  doing  the  latter  will  not 
be  a  breach  of  this  warranty.'* 

717.  Whether  the  vessel  is  unseaworthy  by  not  taking  a  pilot, 
where  there  is  a  provision  of  law  for  pilotage  7 

In  a  case  before  Lord  Kenyon,  and  Justices  Grose  and  Law- 
rence,^ the  decision,  holding  the  underwriters  to  be  discharged  by 
the  vessel  not  having  a  pilot,  was  put  wholly  upon  the  ground  of 
unseaworthiness,  though  the  loss,  by  running  upon  the  anchor  of 
another  vessel  in  the  Thames,  was  not  owing  to  want  of  a  pilot. 
Tindal,  C.  J.,  remarks  upon  that  case,  that  the  decision,  if  it  can 
be  supported  at  all,  must  be  so  on  the  ground  of  non-compliance 
with  the  act  of  Parliament  respecting  pilotage  in  the  Thames. 

Assuming  that  the  neglect  to  take  a  pilot,  or  rather  his  being 
discharged  before  the  vessel  was  safely  moored  in  that  case,  was 
by  mistake  of  the  master,  in  an  intermediate  stage  of  the  voyage, 
according  to  the  English  jurisprudence,  if  the  vessel  is  rendered 
unseaworthy  through  such  mistake  after  the  risk  has  once  com- 
menced, and  loss  by  perils  of  the  sea  supervenes  in  consequence 
or  independently  of  such  mistake,  the  underwriters  still  remain 
liable  for  the  loss,  notwithstanding  such  defect  of  seaworthiness, 

1  So  implied  in  Law  v.  HoUings-  Rich,  Mass.  Sup.  Ct,  Suffolk,  Novem- 

worth,  7  T.  E.  160.  ber,  1817. 

3  Phillips  V.  Headlam,  2  B.  &  Ad.  4  Phillips  v.  Headlam,  2  B.  &  Ad. 

380.  380. 

3  Per  Parker,  C.  J.,  Stan  wood  v.  5  Law  v.  Hollingsworth,  7  T.  R.  160. 
VOL.  I.                         34 


398  IMPLIED   WARRANTIES,  CONDITIONS,   ETC.      [CHAP.  VIII. 

unless  they  can  defend  themselves  from  liability  on  the  ground  of 
contravention  of  law  by  the  master.^ 

This  is  impliedly  assuming  that,  if  a  statute  requires  the  master 
to  take  a  pilot,  the  underwriters  are  discharged  from  their  liability 
during  the  neglect  to  comply  with  the  law.  This  is  in  accordance 
to  some  other  decisions  of  the  English  courts  in  similar  cases, 
already  stated.^  But  the  better  doctrine  seems  to  be,  that  the 
underwriters  are  not  discharged  from  their  liability  for  a  loss,  even 
though  consequent  upon  the  neglect,  since  by  familiar  principle 
and  practice  a  contract  of  indemnity  against  the  illegal  acts  of 
others,  as  loss  by  barratry,  by  pirates,  and  by  incendiaries,  is  valid. 
Consequently,  a  contravention  of  law  by  a  mistake  of  the  master 
is  not  distinguished  in  this  respect  from  any  other  mistake  of  the 
master  in  navigating  the  vessel. 

A  law  providing  for  pilotage  does  not  necessarily  prohibit  the 
master  from  standing  pilot.  Whether  it  does  so  is  matter  of  con- 
struction. The  mere  imposing  of  a  liability  to  pay  a  fee  to  the 
first  pilot  who  offers  himself,  though  his  services  are  not  accepted, 
is  not  necessarily  such  a  prohibition,  being  in  its  character  a  tax  to 
support  a  system  of  pilotage. 

Supposing  the  law,  however,  to  directly  prohibit  the  master  from 
standing  pilot,  if  a  licensed  pilot  can  be  had,  his  doing  so  will  be 
a  contravention  of  law  ;  but  this  is,  to  say  the  least,  a  questionable 
ground  of  defence  against  a  claim  for  even  a  consequent  loss,  and 
certainly  not  a  good  ground  against  one  for  a  loss  merely  subse- 
quent to  and  not  consequent  upon  such  neglect.  The  defence  in 
such  case,  if  any,  must  be,  not  unseaworthiness,  but  that  the  risk 
is  not  covered,  as  where  the  act  is  barratrous  and  that  risk  is  jiot 
insured  against. 

I  accordingly  conclude  that 

A  contravention  of  the  pilotage  laiv  by  the  master's  neglect  to 
take  a  pilot,  with  or  without  the  concurrence  of  the  ship-owner  or 
other  assured,  does  not  necessarily  discharge  the  underwriters. 

718.  Leave  given  in  the  policy  for  the  master  to  stand  pilot  in 
certain  parts  of  the  voyage,  does  7iot  amount  to  a  condition  that 

»  Sadler  v.  Dixon,  8  Mccs.  &  W.  895.     2  Supra,  No.  712,  713,  714,  715. 


SECT.  II.]  SEAWORTHINESS    OP   THE    SHIP.  399 

he  shall  not  stand  pilot  in  other  parts  for  which  his  competency  is 
proved.! 

719.  The  warranty  of  seaworthiness  varies  in  different  places  ; 
a  vessel  considered  seaworthy  for  a  voyage  in  one  place  may  not 
be  so  considered  in  another ;  the  standard  of  seaworthiness  also 
varies  from  time  to  time  in  the  same  place. 

This  warranty  requires  seaworthiness  in  conformity  with  the 
standard  at  the  time,  for  the  contemplated  service,  at  the  port  to 
which  the  vessel  belongs,  unless  some  other  standard  is  referred  to 
expressly  or  by  implication. 

Under  a  policy  underwritten  in  Boston  on  property  on  board  of 
a  vessel  belonging  to  Halifax,  in  Nova  Scotia,  on  a  voyage  from 
Bahia,  in  South  America,  to  that  port,  Mr.  Justice  Story  remarked, 
that  "the  standard  of  seaworthiness  had  been  gradually  raised  in 
many  places  within  the  preceding  thirty  years."  He  ruled  that 
the  underwriter  "  must  be  presumed  to  underwrite  upon  the  ground 
that  the  vessel  shall  be  seaworthy  in  her  equipments,  according  to 
the  general  custom  of  the  port,  or  at  least  of  the  country,  to  which 
she  belongs."^ 

720.  The  requisites  to  seaworthiness  depend  upon  the  intended 
use  and  service  of  the  vessel.  The  requisites  to  satisfy  this  war- 
ranty for  lying  in  port,  or  for  temporary  purposes,  short  coasting 
passages,  or  navigating  a  lalce,  river,  or  canal,  are  different  from 
those  demanded  for  navigating  the  open  sea  on  long  voyages  ?  ^ 

If  the  risk  comprehends  the  time  while  a  vessel  is  in  port,  this 
warranty  will  be  satisfied,  though  she  needs  repairs. 

Insurance  was  made  on  a  vessel  lying  at  Pillau,  where  she  was 
delayed  more  than  a  month  for  repairs.  The  insurers  objected  to 
paying  a  loss,  on  the  ground  that  the  vessel  was  not  seaworthy. 


1  Keeler  v.  Firemens'  Ins.  Co.,  3  Woodman,  3  Taunt.  299  ;  Small  v. 
Hill,  250.  Gibson,  3  Eng.  Law  &  Eq.  R.  (Press 

2  Tidmarsh  v.  Washington  Ins.  Co.,  of  Little,  Brown  &  Co.)  299  ;  Alexan- 
4  Mason,  439 ;  and  see  Am.  Ins.  Co.  der  v.  Pratt,  1  Arnould's  Mar.  Ins. 
V.  Ogden,  20  Wend.  287 ;  per  Wal-  6G9,  n.  (a),  672,  n.  (k)  ;  Bell  v.  Eeed, 
worth,  C,  p.  295.  4  Binn.  127 ;  Oliverson  v.  Loughman, 

3  M'Lanahan  v.  Universal  Ins.  Co.,  cited  2  B.  &  Aid.  322. 
1  Peters's  S.  C.  R.  170  ;  Annen  v. 


400  IMPLIED   WARRANTIES,  CONDITIONS,   ETC.      [CUAP.  VIII. 

Lord  Kenyon  instructed  the  jury,  that  the  vessel  need  not  be  sea- 
wortliy  for  the  voyage  immediately.  The  insurers  took  the  risk 
of  this.i 

The  ship  Eyles,  being  insured  at  and  from  Fort  St.  George  to 
London,  not  being  in  a  fit  condition  to  undertake  the  voyage,  was 
unloaded  at  Fort  St.  George,  and  went  to  Bengal  for  the  purpose 
of  obtaining  repairs.  Being  repaired,  she  returned  and  took  her 
cargo  for  the  homeward  voyage.  Lord  Hardwicke  held  that  the 
risk  commenced  from  the  time  of  the  vessel's  first  arrival  at  Fort 
St.  George,  and  that  she  was  seaworthy.  He  said,  "If  she  went 
to  the  nearest  place,  he  should  consider  it  equally  the  same  as  if 
she  had  been  repaired  at  the  very  place  from  which  the  voyage 
was  to  commence."  ^  The  objection  made  by  the  insurers  was 
upon  the  ground  of  a  deviation,  but  the  decision  implies  an  opinion 
on  the  seaworthiness  of  the  vessel. 

Lord  Ellenborough  :  "  While  a  vessel  remains  at  a  place,  a  state 
of  repairs  and  equipment  may  be  sufficient,  which  would  constitute 
unseaworthiness  after  the  commencement  of  the  voyage.  But  she 
must  be  in  such  a  condition  as  to  be  in  reasonable  security.  If 
she  be  a  mere  wreck,  the  policy  never  attaches."  ^ 

The  circumstance  by  which  a  breach  of  this  warranty  is  ascer- 
tained, says  Mr.  Justice  Sewall,  "to  the  effect  of  avoiding  the 
policy,  is  the  sailing  of  the  vessel  in  an  innavigable  state.  Until 
then  there  is  an  opportunity  of  curing  the  latent  defects  if  they 
should  be  discovered,  and  their  mere  existence,  while  not  prejudi- 
cial or  material  to  the  risk  insured,  is  not  a  forfeiture  of  the  con- 
tract."'* 

It  is  uniformly  assumed  that  there  is  some  stipulation  as  to  the 
condition  of  the  vessel  in  port ;  as  by  Sewall,  J.,^  by  Lord  Ken- 


1  Smith  V.  Surridge,  4  Esp.  25.  339  ;  Taylor  v.  Lowell,  3  Mass.  R.  331 ; 

2  Motteux  r.  London  Ass.  Co.,  1  Brown  t>.  Girard,  4  Yeates,  115;  Weir 
Atk.  545.  V.  Aberdeen,  2  B.  &  Aid.  320 ;  Oliver- 

3  Parmetcr  v.  Cousins,  2  Camp.  235.  son  v.  Loughnan,  cited  2  B.  &  Aid. 
See  Ilibbert  t>.  Martin,  Park,  Ins.  8th  322 ;  Forbes  v.  Wilson,  Park,  344. 
ed.  472 ;  S.  C,  1  Camp.  538  ;  Annen  ^  Taylor  v.  Lowell,  3  Mass.  R.  331. 
f.  Woodman,  3  Taunt.  299;  Cruder  5  Taylor  v.  Lowell,  ut  supra. 

V.  Pennsylvania  Ins.  Co.,  2  Wash.  262, 


SECT.  IL]  seaworthiness   OF  THE   SHIP.  401 

yon,^  Lord  Ellenborough,^  Gibbs,  C.  J.,^  Mr.  Justice  Washington,^ 
and  Mr.  C.  J.  Shaw.^ 

As  to  the  character  and  degree  of  seaworthiness  requisite  to 
satisfy  this  warranty  on  the  vessel  while  in  port,  in  a  Massachu- 
setts case  in  1807,  on  a  premium  note,*^  it  was  held  that  this  war- 
ranty was  complied  with,  under  a  policy  upon  the  ship,  cargo,  and 
freight,  at  and  from  Calcutta,  while  the  vessel  lay  in  that  port, 
though  her  bottom  was  so  much  worm-eaten  that  she  leaked  badly 
on  going  to  sea,  and  the  master,  after  being  out  a  month  on  his 
voyage  to  the  United  States,  was  obliged  to  put  back  to  Calcutta, 
and  land  his  cargo  and  make  repairs.  The  sailing  in  such  a  con- 
dition was  held  to  be  a  non-compliance  with  the  warranty. 

This  decision  was  confirmed  in  a  subsequent  case,  twenty-four 
years  afterwards,  in  the  same  court,  in  a  suit  on  the  premium  note 
for  a  policy  on  cargo  and  freight,  at  and  from  Vera  Cruz.^ 

The  degree  of  seaworthiness  requisite  in  port  under  a  policy 
upon  the  ship  cannot  be  specified  more  definitely  than  it  has  been 
by  Mr.  Chief  Justice  Shaw,  who  says  : 

Seaworthiness  depends  upon  the  uses  and  purposes  to  which  the 
vessel  is  to  be  applied.  While  a  vessel  is  insured  at  a  port,  she 
must  be  in  such  a  condition  as  to  be  in  reasonable  security.^ 

721.  It  follows,  if  we  apply  the  same  criterion,  that  there  may 
be  a  compliance  with  this  warranty  in  a  policy  on  the  ship,  while 
lying  in  port,  and  not  in  one  upon  the  cargo  of  the  same  ship,  for 


1  Smith  V.  Surridge,  4  Esp.  25.  urged  in  the  case,  is  inconsistency 

2  Parmeter  v.  Cousins,  2  Camp.  235.  with  admitted  fundamental  principles, 

3  Abithol  V.  Bristow,  6  Taunt.  464.  since  it  is,  in  such  a  case,  an  adhering 

4  1  Peters's  C.  C.  R.  110.  to  an  inconsistency  and  contradiction, 

5  Paddock  v.  Franklin  Ins.  Co.,  11  and  tends  to  reduce  jurisprudence 
Pick.  227.  from  a  science  to  an  aggregation  of 

6  Taylor  v.  Lowell,  3  Mass.  E.  331.  dogmas.    In  such  a  case  it  is  better 
■7  Merchants'  Ins.  Co.  v.  Clapp,  1 1  presumed  that  contracts  are  made  and 

Pick.  56.     One  ground  assigned  for  executed  on  the  supposition  that  a 

adhering  to  the  decision  was,  that  its  proper  decision  will  be  made  when 

correctness  had  not  been  called  in  the  question  comes  up  again, 
question  in  the  mean  time.    This  does        8  Paddock  r.  Franklin  Ins.  Co.,  11 

not,  however,  seem  to  be  of  great  Pick.  227, 
weight,  where  the  objection,  as  was 
34* 


402  IMPLIED   WARRANTIES,  CONDITIONS,   ETC.      [CHAP.  VIII. 

circumstances  may  be  readily  imagined  and  often  occur,  in  which 
the  vessel  is  in  reasonable  security  in  port  though  goods  on  board 
would  not  be  so.  The  risk  of  perils  of  the  sea  to  the  cargo  does 
not  usually  commence,  and  the  insurable  interest  in  freight  often 
does  not  accrue,  until  the  vessel  has  been  some  time  in  port.  A 
policy  on  freight  and  cargo  may,  therefore,  and  often  does,  attach 
subsequently  to  that  on  the  ship,  under  a  policy  "at"  a  port. 

723.  There  are  then  two  distinctions  in  the  insurance  on  the 
ship,  and  that  on  cargo  and  freight,  first,  in  respect  of  what  is 
seaworthiness  in  port,  and,  second,  as  to  the  time  when  the  policy 
attaches ;  and  these  two  distinctions  have  place,  though  all  these 
interests  are  insured  in  the  same  policy,  made,  or  having  reference 
to  the  time,  before  the  cargo  is  on  board. 

"The  seaworthiness  of  the  ship  depends  upon  the  uses  and  pur- 
poses to  which  it  is  applied."  When  this  use  is  to  load  and  stow 
the  cargo  for  the  voyage,  and  the  vessel  is  in  such  a  state  of  repair 
that  it  is  necessary  to  reland  the  cargo  for  the  purpose  of  making 
repairs,  the  ship  is  not  fit  for  the  use  to  which  it  is  applied.  There 
is,  therefore,  a  non-compliance  with  this  warranty  simultaneous 
with  the  loading  of  the  cargo. 

The  risk,  in  one  of  the  two  Massachusetts  cases  above  referred 
to,'  had  commenced  on  the  ship  before  the  non-compliance  with 
the  warranty  of  seaworthiness,  whereas  under  the  insurance  on 
the  cargo,  and  perhaps  on  the  freight,  the  non-compliance  was  at 
the  time  when  the  risk  was  to  commence,  and  so  prevented  the 
policy  from  attaching  upon  one  or  both  of  those  interests.  The 
non-compliance  was  accordingly  at  an  intermediate  stage  of  the 
risk,  which,  as  we  shall  see,  makes  a  material  difference  as  to  its 
effect.2 

There  was  nothing  to  prevent  the  risk  from  attaching  on  the 
cargo  and  on  the  freight  when  the  vessel  had  returned  and  had 
been  repaired  and  made  navigable,  and  the  cargo  was  put  on  board 
the  second  time. 

The  court  held,  in  the  case  last  referred  to,  that  the  underwrit- 
ers were  not  liable  for  loss  consequent  on  the  defect  of  the  vessel, 

J  Taylor  v.  Lowell,  3  Mass.  R.  331.  2  infra,  No.  727. 


SECT.  II.]        SEAWORTHINESS  OF  THE  SHIP.  403 

which  was,  in  effect,  holding  that  the  warranty  had  not  been  com- 
plied with. 

The  distinction  is  made,  as  to  the  commencement  of  the  risk 
under  the  policy  before  or  after  the  unseaworthiness  occurs,  in  a 
case  in  the  Circuit  Court  of  the  United  States.  Under  a  policy 
upon  goods  "at  and  from"  St.  Lucia,  by  a  vessel  of  which  the 
mate  and  one  man  were  lost  at  that  port,  Mr.  Justice  Washington 
said,  that,  if  they  were  lost  before  the  goods  were  on  board,  the 
policy  did  not  attach  at  all ;  if  after  the  loss  of  the  men,  then  it 
had  attached,  and  had  not  been  forfeited  by  the  vessel's  going  to 
S.  Bart's  for  men.^ 

I  conclude,  accordingly,  that. 

Under  a  policy  upon  cargo  and  freight,  the  warranty  of  sea- 
worthiness  is  not  complied  with,  if  the  cargo  is  put  on  board  for 
the  voyage  when  the  ship  is  in  so  defective  a  state  that  the  cargo 
must  be  relanded  in  order  to  maJce  the  necessary  repairs,  and  the 
policy,  therefore,  does  not  attach  on  the  cargo  if  the  risk  is  to 
commence  at  the  time  of  loading. 

I  understand  the  doctrines  of  Taylor  v.  Lowell  to  be  favored  at 
least,  if  not  fully  sustained,  by  the  subsequent  jurisprudence  in 
England  and  the  United  States,  excepting  on  the  point  of  the  risk 
commencing  on  the  cargo  and  freight  at  the  first  time  of  loading 
the  cargo.  There  are  other  points  in  that  case  to  be  subsequently 
noticed,  which  render  it  one  of  the  landmarks  in  this  branch  of 
commercial  jurisprudence. 

724.  The  seaivorthiness  of  a  vessel  at  the  outset,  being  a  condi- 
tion precedent,  must  be  proved  by  the  assured  in  the  first  instance.^ 

In  divers  cases,  seaworthiness  is  said  to  be  presumed.^ 


1  Cruder  v.  Philadelphia  Ins.  Co.,  3  Taylor  v.  Lowell,  3  Mass.  R.  331 ; 
2  Wash.  C.  C.  R.  262.  per  Sewall,  J.,  p.  347 ;  Deshon  v.  Mer- 

2  Craig  V.  United  States  Ins.  Co.,  1  chants'  Ins.  Co.,  11  Mete.  199;  per 
Peters's  C.  C.  R.  410,  per  Washing-  Hubbard  J.;  Parker  v.  Potts,  3  Dow, 
ton,  J. ;  per  Lord  Eldon,  in  Watson  23,  per  Lord  Eldon,  Chancellor ;  Bar- 
V.  Clark,  1  Dow,  144;  Munro  v.  Yan-  newall  v.  Church,  1  Caines,  217. 
dam,  Park,  Ins.  469,  8th  ed.;    Tld- 

marsh  v.  Washington  Fire  &  Max.  Ins. 
Co.,  4  Mason,  439. 


404  IMPLIED  WARRANTIES,  CONDITIONS,  ETC.      [CHAP.  VIII. 

Whether,  however,  it  is  to  be  proved  in  the  first  instance  by  the 
assured,  or  is  presumed,  is  usually  of  very  little  practical  import- 
ance, since  the  proof  required  in  such  case  is  necessarily  only  of  a 
general  character,  and  may  ordinarily  be  readily  had. 

725.  If  the  vessel  proves  to  be  leaky  or  defective,  or  becomes 
disabled  soon  after  the  time  to  which  this  warranty  has  reference, 
ivhen  there  can  evidently  have  been  no  intervening  injury,  it  is 
inferred  that  the  unseaworthiness  existed  previously  :  ^ 

As  where  the  vessel  sprung  a  leak  and  filled  the  day  after  the 
sailing,  without  any  accident  having  happened  to  it.^ 

So  if  the  vessel  has  encountered  a  storm,  but  it  appears  that  the 
defects  discovered  could  not  have  been  caused  thereby,  and  must 
have  existed  before  sailing,  the  warranty  is  falsified.^ 

726.  It  has  been  before  stated,'^  that  the  liability  of  the  under- 
writer depends  "wholly  or  partially"  upon  compliance  with  this 
warranty,  when  the  risk  under  the  policy  commences  at  the  original 
port  of  departure.  Such  compliance  is  generally  a  condition  pre- 
cedent to  the  attaching  of  the  risk  ;  there  are,  however,  exceptions, 
and  these  I  proceed  to  state. 

This  warranty  is  not  violated  so  as  to  defeat  the  insurance  by 
a  merely  incidental,  temporary  deficiency  at  the  commencement  of 
the  risk,  in  fitness  for  the  voyage,  that  may  be  easily  remedied,  and 
soon  is  so,  in  fact :  ^ 

As  in  the  Massachusetts  case,  already  mentioned,  of  the  needle 
of  the  compass  being  attracted  by  some  iron-work  :  ^ 


1  Talcot  V.  Commercial  Ins.  Co.,  2  2  Lee  v.  Beach,   Park,  Ins.  342 ; 

Johns.  124  and  4  G  7.    See  also  Munro  Marsh.  Ins.  160. 

V.  Vandam,  Park,  333,  n.,  3d  ed.,  469,  3  Douglas  v.  Scougal,  4  Dow's  P.  C. 

8th  cd. ;  Watson  v.  Clark,  1  Dow,  344  ;  269. 

Cort  t'.  Delaware  Ins.  Co.,  2  Wash.  4  No.  696. 

375.    Tiie  question  as  to  the  inference  5  Taylor  v.  Lowell,  3  Mass.  R.  331 ; 

to  be  made  from  the  vessel's  proving  Merchants'  Ins.  Co.  v.  Clapp,  11  Pick, 

leaky  soon  after  sailing,  without  appa-  56. 

rent  cause  froni  soa-perils,  is  presented  c  Stanwood  i'.  Rich,  Sup.  Ct.  Mass. 

in  Mills  V.  Roebuck,  Marsh.  Ins.  154 ;  Suffolk,  November,  1817. 
Park,  Ins.  460,  8th  ed. ;  but  the  case 
gives  no  light  on  the  subject  of  sea- 
worthiness. 


SECT.  II.]  SEAWORTHINESS   OF   THE   SHIP.  405 

So  in  case  of  the  vessel  being  temporarily  unseaworthy  for  want 
of  sufficient  ballast ;  ^ 

Or  the  cargo  so  stowed  as  to  cause  the  vessel  to  be  out  of  trim.^ 

So  Mr.  Justice  Story  intimates  that  the  risk  attaches  and  con- 
tinues under  the  policy,  notwithstanding  that  the  sailors  are  in  a 
state  of  intoxication  at  the  time  of  sailing,  though  the  underwriters 
would  not  be  liable  for  a  loss  occasioned  thereby.-^ 

So  in  a  South  Carolina  case  of  a  vessel  not  having  a  pilot,  and 
yet  getting  safe  over  the  pilot  ground,  the  policy  was  held  not  to 
be  forfeited."* 

In  an  English  case  of  a  vessel  unseaworthy  by  being  overloaded, 
which  put  back  and  discharged  a  part  of  her  cargo  with  the  con- 
sent of  the  underwriters,  they  were  held  to  be  liable  for  a  subse- 
quent loss.  The  decision  does  not  appear  to  be  put  merely  upon 
the  consent  of  the  insurers,  for  Lord  Tenterden  remarks  :  "  It  is 
said  that  the  memorandum  expressing  the  consent  of  the  under- 
writers is  void,  and  that,  in  order  to  bind  the  underwriters,  a  new 
contract  was  necessary,  inasmuch  as  the  fact  of  the  vessel  having 
sailed  in  an  unseaworthy  state,  put  an  end  to  their  liability  under 
the  policy.  That  proposition  would  go  the  length  of  establishing, 
that  if  a  vessel,  at  the  outset  of  her  voyage,  be  by  mistake  or 
accident  unseaworthy,  owing  to  some  defect  which  is  immediately 
discovered  and  remedied,  before  any  loss  happens  in  consequence 
of  it,  still  that  the  policy  would  be  void,  and  the  underwriters  not 
liable.  I  was  surprised  at  that  proposition,  because,  if  true  in 
point  of  law,  I  fear  we  should  find  many  cases  where  the  assured 
could  have  no  claim  upon  the  underwriters,  because  something 
was  wanting,  or  something  excessive,  at  the  instant  of  the  ship's 
departure,  although  the  want  had  been  supplied,  or  the  excess 
removed,  before  the  loss  happened."^ 

J  Debloisr.  Ocean  Ins.  Co.,  16  Pick.        5  Weir  v.  Aberdeen,  2  B.&  Aid.  320. 
303.  Mr.  Justice  Story  intimates  a  doubt 

2  Chase  V.  Eagle  Ins.  Co.,  5  Pick.  51.     of  this  case,  M'Lanahan  v.  Universal 

3  United  States  v.  Hunt,  2  Story's     Ins.  Co.,  1  Peters's  S.  C.  R.  170. 
R. 121. 

4  M'Millan  v.  Union  Ins.  Co.,  Rice's 
(S.  Car.)  R.  249. 


406  IMPLIED  WARRANTIES,  CONDITIONS,   ETC.      [CIIAP.  VIII. 

727.  If  the  risk  is  intended  and  understood  by  the  parties  to 
commence  at  some  intermediate  stage  of  a  voyage  at  sea,  or  at  some 
distant  port  beyond  the  superintendence  and  control  of  the  assured, 
the  requisites  to  a  compliance  with  this  warranty  may  be,  and 
usually  are  in  fact,  not  the  same  as  at  the  original  port  of  departure 
when  the  risk  begins  there.  In  such  case  this  stipulation  for  sea- 
worthiness is  satisfied  if  the  vessel  was  in  a  condition  to  pursue  her 
adventure,  though  large  repairs  were  requisite,  and  though  it  may 
have  been  necessary  to  go  to  some  port  for  the  express  purpose  of 
making  the  repairs. ^ 

Where  a  vessel  insured,  lost  or  not  lost,  with  liberty  of  a  letter 
of  marque,  was  absent  on  a  fishing  voyage,  the  risk  to  commence 
about  a  year  before  the  date  of  the  policy,  at  which  time  she  had 
been  weak-handed,  and  was  soon  after  seized  by  some  Spanish 
prisoners  on  board  of  her,  who  rose  upon  the  crew,  Lord  Kenyon 
ruled,  that,  if  she  had  sufficient  force  to  pursue  any  part  of  her 
adventure,  or  to  navigate  her  home,  the  warranty  was  satisfied.^ 

This  question  is  elaborately  considered  by  the  English  Courts 
of  Queen's  Bench  and  Exchequer  Chamber,  and  in  the  House  of 
Lords,  in  a  case  of  a  policy  for  one  year,  upon  the  plea  that  the 
vessel  was  not  seaworthy  either  at  the  date  of  the  policy  or  at  the 
time  when  the  risk  was  to  have  begun.  Parke,  B.,  giving  the 
opinion  of  the  Court  of  Exchequer  Chamber,  said:  "It  is  un- 
doubted law,  that  there  is  an  implied  warranty  that  the  ship  had 
been  seaworthy  when  the  voyage  had  commenced,  if  the  insurance 
is  on  a  vessel  already  at  sea."  ^ 

The  Baron  then  proceeds  to  state  that  there  is  no  warranty  of 


1  Dixon  V.  Sadler,  5  Mees.  &  W.  Eq.  R.  299,  (Press  of  Little,  Brown  & 
414 ;  Sadler  v.  Dixon,  8  Mees.  &  W.  Co.)  290  ;  S.  C,  14  Eng.  Jurist,  368 ; 
895  ;  Am.  Ins.  Co.  v.  Ogden,  20  Wend.  S.  C,  in  Exchequer  Chamber,  3  Eng. 
287;  Copcland  i\  N.  E.  Marine  Ins.  Law  &  Eq.  R.  (Press  of  Little,  Brown, 
Co.,  2  Mete.  432;  IloUingworth  v,  &  Co.)  299 ;  S.  C,  20  Eng.  Law  Jour. 
Brodrick,  7  Ad.  &  EI.  40.  R.  (n.  s.)  152;  15  Eng.  Jurist,  325  ; 

2  Ilucks  V.  Thornton,  1  Holt,  30.  S.  C,  Gibson  v.  Small,  in  the  House 
Sec  also  Paddock  v.  Franklin  Ins.  Co.,  of  Lords,  1  Eng.  Law  &  Eq.  R.  1853, 
11  Pick.  227.  Common  Law,  p.  3G3,  (to  be  repub- 

3  Small  V.  Gibson,  3  Eng.  Law  &  lished,  press  of  Little,  Brown  &  Co.) 


SECT,  n.]  SEAWORTHINESS   OF   THE   SHIP.  407 

the  seaworthiness  of  the  vessel  at  the  commencement  of  the  risk, 
wherever  the  vessel  may  be,  under  a  policy  where  the  risk  is  to 
begin  at  sea,  since  it  is  well  understood  that  the  assured  could  not 
know  what  was  the  condition  of  the  ship  at  that  time.  The  plea 
in  the  case  referred  to  was  accordingly  held  to  be  bad. 

The  difference  is  stated,  by  some  of  the  judges,  to  be  between 
a  voyage-policy,  under  which  the  risk  is  to  begin  with  the  voyage, 
and  a  time-policy.  This  phraseology  is  deceptive.  The  differ- 
ence intended  evidently  is,  that  between  a  policy  under  which  the 
risk  is  to  commence  at  the  home  port,  or  at  some  other,  where 
there  are  ample  means  for  repairs  and  refitting  and  where  it  is 
subject  to  the  superintendence  of  the  owner  or  his  agents,  and  one 
that  is  to  commence  at  a  distance,  at  sea  or  at  some  intermediate 
stage  of  a  voyage.  It  is  immaterial  whether  the  policy  is  for  a 
certain  period,  or  from  one  geographical  point  to  another,  or  from  a 
certain  date,  as  it  often  is,  to  the  end  of  the  pending  voyage,  or  to 
any  subsequent  port.  If,  for  instance,  the  vessel  on  a  fishing  or 
trading  voyage  is  insured  at  and  from  a  certain  intermediate  port 
where  it  is  well  known  that  it  could  not  be  repaired  and  refitted 
to  any  great  extent,  it  would  be  substantially  equivalent  to  begin- 
ning the  risk  in  the  midst  of  a  passage  since  some  repairs  can  be 
made  at  sea.  The  discrimination  relates  to  the  means  of  super- 
intendence and  of  repairing  and  refitting,  under  the  circumstances 
in  which  the  parties  expect  the  risk  to  begin,  of  whatever  descrip- 
tion the  policy  may  be  in  other  respects,  and  however  the  duration 
of  the  risk  may  be  described. 

In  the  same  case,  in  the  House  of  Lords,  elaborate  opinions  were 
given  by  Martin,  B.,  Talfourd,  J.,  Williams,  J.,  Piatt,  B.,  Erie,  J., 
Maule,  J.,  Alderson,  B.,  Parke,  B.,  and  Pollock,  C.  B.,  before 
the  House  ;  and  by  Lord  St.  Leonards  and  Lord  Campbell  of  the 
House.  Some  of  these  judges  maintained  that  there  is  no  implied 
warranty  of  seaworthiness  in  such  a  policy.  Others  were  in  favor 
of  an  implied  warranty  of  seaworthiness  at  the  last  port  visited 
before  the  beginning  of  the  risk.  The  judgment  in  the  House 
of  Lords  was  in  affirmance  of  that  of  the  Exchequer  Chamber, 
that  there  was  no  implied  condition  that  the  ship  was  seaworthy 


408  IMPLIED   WARRANTIES,  CONDITIONS,   ETC.      [CHAP.  Vin. 

at  the  time  of  making  the  policy  or  at  the  beginning  of  the  risk, 
reversing  the  judgment  of  the  Queen's  Bench. 

The  discussions  in  this  case,  by  reason  of  its  coming  up  on  the 
plea  that  the  vessel  was  not  seaworthy,  turned  very  much  upon 
the  question,  whether  there  was  a  condition  precedent  that  the 
vessel  should  be  seaworthy  in  the  strict  signification  of  the  term. 
The  question  which  we  are  considering  is,  however,  a  wider  one, 
namely,  whether  there  is  any,  and,  if  any,  what,  implied  stipulation 
of  the  assured  as  to  the  fitness  and  sufficiency  of  the  vessel  in  such  a 
case.  The  word  "seaworthiness"  not  being  ordinarily  used  in 
the  policy,  it  does  not  contain  any  particular  phraseology  upon 
the  construction  of  which  the  question  arises ;  the  case  is  open  to 
the  inference  of  any  stipulation  as  to  the  state  of  the  vessel  at  the 
time  for  the  risk  to  begin,  merely  from  the  fact  of  effecting  the  in- 
surance, free  from  any  embarrassment  by  reason  of  the  express 
terms  of  the  contract. 

This  question  respecting  an  implied  condition  in  a  time-policy, 
that  the  vessel  is  seaworthy,  came  before  a  committee  of  the  Privy 
Council  in  England  on  appeal  from  a  decision  in  Bengal,  under 
a  policy  upon  a  steam-vessel  for  four  months,  which  had  been 
wrecked  on  a  passage  on  which  she  started  after  the  risk  had  be- 
gun, with  an  insufficient  crew.  The  committee  consisted  of  Jervis, 
C.  J.,  Dr.  Lushington,  Pemberton  Leigh,  Sir  Edward  Ryan,  and 
Sir  John  Patteson,  who  adjudged  the  underwriters  to  be  liable  for 
the  loss,  partly  on  the  authority  of  the  case  last  cited  ;  Mr.  C.  J. 
Jervis  remarking,  that  if  there  was  in  a  time-policy  a  condition 
that  the  vessel  should  be  seaworthy  on  leaving  each  port  succes- 
sively, there  would  be  less  warranty  of  seaworthiness  in  a  voyage- 
policy  than  in  a  time  policy,^  which  he  thought  could  not  be. 
This  consequence  does  not,  however,  seem  to  be  necessary,  for  a 
court  would  hesitate  to  decide  in  favor  of  a  recovery  for  a  loss 
occasioned  by  the  neglect  of  the  assured  to  procure  a  sufficient 
crew,  whether  the  policy  were  for  a  voyage  or  for  a  specific  time. 


'  Jenkins  v.  Ilcycoek,  1  Eng.  Com-     lished  in  Eng.  Law  &  Equity  R.,  press 
mon  Law  R.  1853,  p.  408  (to  be  repub-     of  Little,  Brown  &  Co.) 


SECT.  II.]  SEAWORTHINESS    OF   THE   SEIP.  409 

The  same  question  has  since  come  up  in  Massachusetts  on  a 
policy  for  one  year  at  all  times  and  places,  upon  a  vessel  being  at 
the  time  at  sea,  which  arrived  at  Boston,  her  home  port,  and  then 
made  a  passage  to  Norfolk,  and  there  took  a  cargo  for  Sicily. 
Being  found,  after  sailing,  unfit  to  proceed,  on  account  of  the  de- 
fectiveness and  weakness  of  her  timbers,  she  put  back  to  Savan- 
nah, and  it  was  there  ascertained  that  she  required  expensive 
repairs,  to  procure  which  she  sailed,  with  a  light  cargo,  for  New 
York,  where  the  repairs  would  cost  less  than  at  Savannah,  and  on 
that  passage  was  burnt. 

It  appeared  on  examination  at  Savannah  that  the  condition  of 
her  timbers  at  the  time  for  the  risk  to  begin,  was  such  that  she 
would  within  the  year,  without  any  extraordinary  accident,  cer- 
tainly require  great  repairs  to  fit  her  to  carry  the  usual  cargoes  on 
the  usual  voyages  of  vessels  of  the  same  class. 

One  question  presented  was,  whether  the  policy  was  defeated 
by  unseaworthiness  at  the  time  for  the  risk  to  begin.  Shaw,  C.  J., 
stated  the  opinion  of  the  court,  that  there  is  in  such  a  case  no  war- 
ranty of  seaworthiness  in  the  strictest  meaning  of  that  term,  but 
that  the  only  implied  condition  is,  "that  the  vessel  is  in  existence 
as  a  vessel  at  the  commencement  of  the  risk,  capable  of  being 
made  useful  for  navigation,  and  in  a  safe  condition,  whether  at  sea 
or  in  port,  and  is  seaworthy  when  she  first  sails,  or,  if  she  is  at  sea, 
that  she  had  sailed  in  a  seaworthy  condition,  and  is  safe."  i 

The  jurisprudence,  both  English  and  American,  seems,  at  least, 
to  converge  to  the  doctrine  thus  stated,  if  it  does  not  definitively 
establish  it  with  a  modification  to  include  the  case  of  its  being 
understood  by  underwriters  that  the  risk  may  begin  at  a  distant 
port  where  the  requisite  repairs  cannot  be  made,  or  at  sea  after  the 
vessel  may  have  last  left  such  a  port,  and  so  as  to  exclude  the  case 
next  to  be  mentioned. 

728.    Under  a  ijolicy  by  which    the    risk   commences   at  some 
intermediate  stage,  the  assured  impliedly  warrants  against  loss  or* 
damage  in  direct  consequence  of  previous  negligence  or  mismanage- 

1  Capen   v.  Washington  Ins.  Co.,    Boston  Daily  Advertiser,  November, 
Supr.    Ct.    Mass.,   November,   1853.     24,  1853. 
VOL.  I.  35 


410  IMPLIED   WARRANTIES,   CONDITIONS,   ETC.      [CHAP.  VIII. 

tneiit  by  the  master  and  crew,  or  any  person  having  charge  of  the 
ship. 

Under  a  policy  which  does  not  incUide  barratry,  the  acts  of  the 
master  and  crew  in  navigating  the  vessel,  not  amounting  to  bar- 
ratry, are  unquestionably,  to  a  great  extent  at  least,  at  the  risk  of 
the  insurers,  as  we  shall  see  under  the  head  of  risks  ;  but  they 
cannot  be  presumed  to  insure  against  the  direct  effects  of  the  pre- 
vious fault  of  the  master  and  crew,  existing  at  the  commencement 
of  the  risk.  It  is  so  stated  by  Parke,  B.,  who,  speaking  of  insur- 
ance on  an  absent  ship,  to  commence  at  some  intermediate  stage 
of  the  voyage,  says  :  "  If  the  ship  had  met  with  damage  before, 
and  could  have  been  repaired  by  the  exercise  of  reasonable  care 
and  pains,  and  was  not,  the  policy  would  not  attach."  ^ 

That  is  to  say,  the  defective  state  of  the  ship  under  such  cir- 
cumstances would  affect  the  policy  in  the  same  manner  as  where 
the  risk  under  the  policy  commences  with  the  voyage.  This  coin- 
cides with  the  remarks  of  Mr.  C.  J.  Shaw.^ 

That  is  to  say,  the  prior  negligence  of  the  assured  or  his  agents, 
including  among  these  the  master  and  crew,  and  all  the  direct 
consequences  of  it,  are  at  the  risk  of  the  assured,  and  are  not  to 
be  drawn  into  the  policy  so  made. 

729.  Whether  a  policy  is  for  a  voyage  or  period  of  time,  the 
construction  of  this  loarranty  is  the  same  as  to  compliance  being 
a  condition  precedent  at  the  outset,  and  as  to  non-compliance  at 
intermediate  stages  of  the  risk."^ 

730.  After  the  policy  has  once  attached,  a  compliance  with  this 
warranty  ceases  to  be  a  condition  precedent  to  the  liability  of  the 
insurers  for  any  loss  ;  for  though  a  subsequent  non-comyUance  may 
be  of  such  a  character  as  to  discharge  the  insurers  from  liability 
for  any  loss  haj)pening  thereafter,  they  undoubtedly  still  remain 
liable  for  any  loss  jtrior  to  such  non-comjjliance. 

•     >  Small    V.   r,il)son,   .3   Bennett   &  299 ;  Dixon  v.  Sadler,  5  Mees.  &  W. 

Smith,  Law  &  Ya[.  U.  290,  299.  414;  S.  C,  8  id.  895 ;  Ilollingwortli  v. 

2  Paddock  v.  Franklin  Ins.  Co.,  11  Brodrick,  7  Ad.  &  El.  40;  American 
Pick.  227.  Ins.  Co.  v.  Ogden,  20  Wend.  R.  287; 

3  Small    r.   Gibson,   .'J   Bennett    &  per  AValwortb,  C,  p.  29G. 
Smith,  Law  &  Kq.  R.  290 ;  S.  C,  3  id. 


SECT.  II.]        SEAWORTHINESS  OF  THE  SHIP.  411 

In  this  case,  as  in  that  of  representation,  a  loss  may,  by  the 
terms  of  the  poHcy,  have  become  payable  before  the  forfeiture  by 
non-compliance  takes  place. 

731.  The  obligation  still  rests  upon  the  assured  to  keep  the 
vessel  seaworthy  if  it  be  practicable,  so  far  as  it  depends  on  him- 
self^ 

A  shipment  being  made  at  half  profits  instead  of  freight,  from 
Newburyport  to  Calcutta  and  back,  the  goods  shipped  at  Calcutta 
in  exchange  were  damaged  in  that  port  by  the  leakage  of  the  ship. 
It  was  held  that  the  ship-owner  was  answerable  for  this  damage  ; 
or,  in  other  words,  that  he  was  bound  to  put  his  ship  in  repair  at 
that  port,  even  though  the  leak  should  have  arisen  from  damage 
sustained  on  the  outward  voyage,  and  have  been  caused  by  perils 
of  the  seas  which  were  excepted  in  the  bill  of  lading.^ 

In  a  subsequent  case  before  the  same  court,  it  was  held  to  be 
the  duty  of  the  owner  to  procure  the  necessary  and  reasonable 
repairs  in  the  successive  stages  of  the  voyage,  according  to  the 
means  that  can  be  had  for  the  purpose  ;  and  if  they  are  neglected, 
this  implied  stipulation  is  not  complied  with.  But,  as  Mr.  Chief 
Justice  Shaw  remarks,  where  the  voyage  extends  abroad  to  great 
distances,  and  continues  for  a  long  time,  this  stipulation  is  to  be 
liberally  construed.-" 

So  a  distinction  is  made  by  Lord  Mansfield,  between  this  war- 
ranty as  applied  to  the  commencement  of  the  risk,  or  the  depart- 
ure of  the  ship,  and  the  subsequent  stages.^ 

In  some  of  the  above  cases,  the  neglect  of  the  master  to  make 
repairs  at  intermediate  ports  is  imputed  to  the  assured.     Whether 

1  3  Kent's  Com.  288,  3d  ed. ;  De-  Mar.  Ins.  Co.,  19  Pick.  198;  Hazard 
peyre  v.  Western  Fire  &  Mar.  Ins.  v.  New  England  Mar.  Ins.  Co.,  1  Sum- 
Co.,  2  Rob.  (La.)  R.  457;  and  see  ner,  218.  In  the  case  of  Mills  r.  Roe- 
cases  generally.  buck,  Park,  7tli  London  ed.,  p.  335, 

2  Putnam  u.  Wood,  3  Mass.  R.  481.  and  Marsh.,  3d  London  ed.,  p.  124, 

3  Paddock  v.  Franklin  Ins.  Co.,  11  the  same  subject  is  presented,  but 
Pick.   227  ;  and   see   Iloldsworth  v.  nothing  is  decided. 

Wise,  7  B.  &  C.   794 ;  Copeland  v.  4  March   v.   Pigot,  5   Burr.   2802. 

New  England  Mar.  Ins.  Co.,  2  Mete,  See   also    Caldwell   v.  Western   Ins. 

432;  Hollingworth  v.  Brodrick,  7  Ad.  Co.,  19  La.  R.  42,  for  a  like  distinc- 

&  El.  40 ;  Starbuck  v.  New  England  tion. 


412  IMPLIED   WARRANTIES,   CONDITIONS,   ETC.      [CHAP.  VIII. 

it  should  be  so  imputed  is  subsequently  considered. ^  So  far  as 
the  assured  and  the  agents  by  him  authorized,  other  than  the 
navigators  of  the  vessel,  are  concerned,  the  cases  agree  that  he  is 
bound  to  reasonable  care  and  diligence  in  providing  for  and  main- 
taining the  seaworthiness  of  the  vessel. 

73r2.  As  the  assured  is  answerable  for  the  representations  of  his 
agent  in  effecting  the  insurance,  and  fitting  out  the  vessel  origin- 
ally, so  the  acts  and  neglects  of  those  whom  the  ship-owner  appoints 
to  represent  him  in  the  intermediate  stages  of  the  voyage  or  risk, 
for  other  purposes  than  the  mere  charge  and  navigation  of  the 
vessel,  are  imputable  to  him,  so  far  as  seaworthiness  is  thereby 
affected. 

The  extent  of  this  responsibility  will  depend  upon  the  nature, 
'duration,  and  exigencies  of  the  voyage,  and  the  usages  of  the 
trade.  Whether  the  master  or  any  correspondent  is  authorized  by 
the  assured  on  the  ship  to  act  for  him  in  matters  to  be  transacted 
at  foreign  ports,  other  than  the  charge  and  management  of  the 
vessel,  —  such,  for  instance,  as  supplying  funds  adequate  to  the 
the  probable  necessities  of  the  voyage  or  service,  whatever  it  may 
be,  —  the  acts  or  neglects  of  such  agent  for  such  purposes  are  im- 
putable to  the  assured,  on  either  ship,  freight,  or  cargo,  so  far  as 
the  risks  insured  against  are  concerned.^  This,  at  least,  is  usually 
implied  in  the  phraseology  of  judges  and  jurists,  and  often,  as  we 
shall  see,  a  much  greater  responsibility  is  directly  asserted  ;  namely, 
responsibility  for  the  acts  and  neglects  of  the  master  as  such. 

The  question  whether  underwriters  are  in  general  so  liable,  will 
recur  under  the  head  of  risks,  and  is  noticed  here  merely  in  refer- 
ence to  the  warrantry  of  seaworthiness.  If,  in  an  emergency,  not 
to  be  anticipated  and  provided  for  by  the  ship-owner,  the  aid  of 
some  person  is  justifiably  invoked  by  the  master;  or  if  a  consul  or 
some  other  person  in  a  foreign  port  interferes,  this  is  a  different 
case.  We  are  now  considering  merely  the  case  where,  by  the 
usages  of  the  trade,  or  ordinary  demands  of  the  voyage,  a  repre- 
sentation of  the  ship-owner  is  requisite  in  a  foreign  port  for  other 


1  No.  732,  733,  734.  rican  Ins.  Co.  v.  Ogden,  20  Wend. 

2  Per  Walworth,    Chan.   In   Amc-     301. 


SECT.  II.]  SEAWORTHINESS   OP  THE   SHIP.  413 

purposes  than  those  falling  within  the  proper  authority  and  duty 
of  the  master  as  such,  and  the  proposition  is,  that  the  assured  is 
bound,  as  far  as  the  question  of  seaworthiness  is  concerned,  accord- 
ing to  the  usages  or  usual  necessities  of  the  voyage,  to  provide  for 
such  a  representation,  by  the  master  or  other  agent,  and  is  respon- 
sible for  the  acts  and  neglects  of  the  agent  so  appointed  by  him. 

733.  Whether,  under  a  policy  on  the  outward  and  return  voy- 
age, in  case  of  the  vessel  having  been  seaworthy  at  the  beginning 
of  the  voyage  at  the  home  port  of  departure,  its  subsequent  unsea- 
worthiness, occasioned  by  the  Ms  take  or  negligence  of  the  master 
on  a  passage,  or  in  a  foreign  port,  is  a  non-compliance  with  the 
warranty  of  seaworthiness,  so  as  to  discharge  the  underwriters  ? 

It  was  held  by  the  English  Courts  of  Exchequer  and  Exche- 
quer Chamber,  after  deliberate  consideration,  where  the  master 
rendered  the  vessel  unseaworthy  by  throwing  over  ballast,  that  the 
underwriters  were  not  thereby  discharged,  but  remained  liable  as 
before  for  damage  by  perils  of  the  seas.^ 

A  decision  similar  in  principle  has  been  made  by  the  English 
Court  of  King's  Bench  in  case  of  a  vessel  insured  from  Ireland  to 
Newfoundland  and  back,  that  sailed  on  her  homeward  voyage  in 
an  unseaworthy  condition. ^  The  vessel  leaked  on  sailing  from  St. 
Andrews,  on  her  homeward  passage,  making  ten  inches  of  water 
in  her  hold  per  hour.  It  is  not  said  whether  repairs  could  have 
been  made  at  St.  Andrews,  or  whether  there  was  any  fault  in  her 
sailing  as  she  did.  A  question  was  made,  whether  it  was  a  fault 
in  the  master  and  crew  to  abandon  the  vessel  at  sea,  which  was 
not  decided  in  this  case.  Bayley,  J.,  referred  on  this  point  to 
another  case  pending  in  the  same  court,^  in  which  it  was  held  by 
Lord  Tenterden  and  his  associates,  that  the  underwriters  were  lia- 
ble for  a  loss  by  perils  insured  against,  though  occasioned  by  the 
"  misconduct  or  negligence  of  the  captain  and  crew." 

This  doctrine  is  in  accordance  to  the  more  general  one,  that 


1  Dixon  V.  Sadler,  5  Mees.  &  W.        3  Shore    v.   Bentall,    7    B.   &    C. 
415  ;  Sadler  v.  Dixon,  8  id.  895.  798,  n. 

2  Iloldswortli  V.  Wise,  7  B.  &  C. 

794. 

35* 


414  IMPLIED    WARRANTIES,   CONDITIONS,   ETC.      [CHAP.  VIII. 

will  be  Stated  under  the  title  of  risks  ;  namely,  that,  if  the  vessel 
was  seaworthy  at  the  beginning  of  the  voyage,  the  insurers  are  not 
exonerated  from  loss  by  any  risk  insured  against,  though  occa- 
sioned by  the  misconduct  or  negligence  of  the  master  and  crew, 
short  of  barratry,  in  the  navigation  and  management  of  the  vessel.^ 

A  contrary  decision  by  Lord  Kenyon,  and  Grose,  and  Law- 
rence, Justices,  before  referred  to,^  is  conclusively  overruled  by 
the  preceding  cases. 

If  the  misconduct  amounts  to  barratry,  the  insurers  are  not  re- 
sponsible for  loss  thereby  occasioned,  unless  that  is  one  of  the  risks 
insured  against. 

The  doctrine  now  well  established  in  England  extends  the  lia- 
bility of  the  insurers  to  the  case  of  a  loss  consequent  upon,  as  weW 
during  as  subsequent  to,  the  unseaworthiness  occasioned  by  the 
neglect  or  mistake  of  the  master  or  mariners.  There  is  not  appa- 
rently any  difference  in  principle  in  the  two  cases. 

The  same  doctrine  is  supported  by  an  American  case,  where  a 
loss  was  occasioned  by  the  mate's  not  taking  charge  of  the  vessel, 
instead  of  leaving  it  in  command  of  the  master,  who  was  evidently 
subject  to  mental  derangement  before  sailing  from  a  foreign  port;^ 
for  this  was  the  mistake  or  negligence,  or  both,  of  the  mate.  It  is 
true,  the  court  say  that  the  vessel  was  seaworthy,  because  the 
mate  was  capable  of  navigating  it.  But  surely,  if  the  assured 
had  given  command  to  an  insane  captain  at  the  commencement  of 
the  voyage,  the  vessel  would  not  have  been  seaworthy,  though 
some  officer  had  been  on  board  capable  of  navigating  it,  without 
authority  to  do  so.  The  skill  of  the  officer  is  in  such  a  case  un- 
available. So  it  was  in  this  case,  through  the  neglect  or  mistake 
of  the  mate.  The  case,  therefore,  does  not  seem  to  be  distinguish- 
able in  principle  from  one  of  unseaworthiness  by  omission  to  make 
repairs  at  a  foreign  port,  through  the  negligence  or  mistake  of  the 

1  Busk  r.  Royal  Exch.  Ass.  Co.,  2     ville)  Ins.  Co.,  11  id.  213,  are  to  the 

B.  &  A.  73  ;  Walker  v.  Maitland,  5  B.    same  effect. 

&A.  171;  Bishop  I'.  Pcntland,  7  B.  &        2  Law  v.  IloUlngsworth,  7  T.  R. 

C.  219;   and   Columbia  Ins.  Co.  v.     IGO;  supra,  No.  712. 

Lawrence,  10  Tcters's   Sup.  Ct.  R.        3  Copeland  v.  New  England  Mar. 
.007,  and  Waters  v.  Merchants'  (Louis-    Ins.  Co.,  2  Mctc.  432. 


SECT.  II.]        SEAWOKTHINESS  OP  THE  SHIP.  415 

master.     Negligence  or  mistake  of  an  officer  or  manner  is  upon 
the  same  footing  in  this  respect  as  tliat  of  the  master. 

Mr.  Justice  Story,  giving  the  opinion  of  the  Supreme  Court  of 
the  United  States,  remarks  that  the  above  doctrine  of  the  English 
courts  "is  well  worthy  of  discussion."  ^ 

Mr.  C.  J.  Shaw,  giving  the  opinion  of  the  Supreme  Court  of 
Massachusetts,  remarks  upon  the  same  doctrine,  as  stated  in  the 
case  of  Sadler  v.  Dixon  :^  "If  this  is  to  be  taken  as  limited  to  the 
case  where  the  master,  officers,  and  crew  act  in  their  own  proper 
sphere,  as  practically  managing  and  conducting  the  navigation, 
and  where  the  master  does  not  stand  in  the  relation  of  representa- 
tive and  agent  of  the  owners,  we  think  it  is  not  inconsistent  with 
the  general  principle,  leaving  the  owner  still  bound  by  the  acts  of 
the  master,  so  far  as  by  the  law  and  usage  of  navigation,  he  is  the 
representative  of  the  owners,  executing  their  express  or  implied 
orders,  and  doing  all  such  acts  as  the  owner  himself  might  and 
would  do  if  present."  ^ 

It  does  not  appear  that  the  English  courts  extended  the  doctrine 
beyond  the  limit  of  the  duty  of  the  master  as  such.  It  is  not  obvi- 
ous what  duties  the  usages  of  a  voyage  can  put  upon  the  master 
affecting  seaworthiness,  other  than  those  belonging  to  him  in  that 
capacity.  The  acts  of  the  master  in  taking  measures  for  main- 
taining the  navigability  and  seaworthiness  of  the  vessel  do  not 
appear  to  be  distinguishable,  in  reference  to  the  present  inquiry, 
from  his  acts  in  navigating  it. 

The  earlier  cases  supply  dicta,  and  decisions,  opposite  in  doc- 
trine, and  even  some  comparatively  recent  ones.'* 

I  conclude,  however,  that  the  better  doctrine  is,  that. 

Where  the  vessel  is  seaivorthy  in  the  outset,  loss  by  perils  insured 
against  consequent  upon  subsequent  unseaivorthiness  occasioned  by 
the  negligence  or  mistakes  of  the  master  and  crew,  without  fraud, 
is  at  the  rislc  of  the  underivriters. 

1  M'Lanalian  v.  Universal  Ins.  Co.,  ^  See  Grim  v.  Phoenix  Ins.  Co.,  13 
1  Peters's  Sup.  Ct.  R.  180.  Johns.  451  ;  assumed  in  Coolidge  v. 

2  8  Mees.  &  W.  895.  New  York  Fire  Ins.  Co.,  14  Johns.  308 ; 

3  2  Mete.  443,  Copeland  v.  New  and  in  American  Ins.  Co.  v.  Bryan, 
England  Mar.  Ins.  Co.  26  Wend.  563,  in  the  Court  of  Errors. 


416  IMPLIED  WARRANTIES,   CONDITIONS,   ETC.      [CHAP.  VIII. 

734.  In  case  of  a  temporary  unseaworthiness  imputahle  to  the 
assured,  whereby  the  perils  insured  against  are  generally  affected, 
the  risk  is  suspended,  and  revives  on  the  navigability  of  the  vessel 
being  restored,  and  the  subject  being  liable  to  the  same  risks  as  if 
the  warranty  had  been  complied  with. 

As  we  have  seen,  a  vessel  may  be  in  a  condition  to  answer  this 
warranty  in  port,  so  that  the  policy  attaches  there,  on  whichever 
interest  it  is  made,  but  the  warranty  may  be  violated  on  its  sailing 
in  the  same  condition. 

Here,  the  policy  having  attached,  the  premium  is  secured  to  the 
underwriter  for  the  whole  voyage  or  passage,  or  year,  and  the 
question  occurs,  whether  the  assured  is  to  lose  it  entirely,  or  may, 
by  remedying  the  defect,  revive  the  policy.  Much  of  the  juris- 
prudence on  this  subject,  the  earlier  part  of  it  especially,  proceeds 
on  the  assumption  that  the  insurance  is  gone  irretrievably.  The 
first  decision  to  the  contrary  that  I  am  aware  of  was  in  the  Massa- 
chusetts case  of  1807,  already  mentioned,^  on  a  premium  note  for 
a  ship,  cargo,  and  freight,  at  and  from  Calcutta,  which  was  held 
to  attach  in  that  port.  The  warranty  was  held  to  be  violated,  and 
the  risk  to  be  suspended,  on  the  sailing  of  the  vessel  in  an  innavi- 
gable state,  but  the  risk  was  held  to  revive  on  the  return  to  the 
same  port  for  repairs,  and  to  continue  during  the  voyage  to  the 
United  States. 

The  most  important  feature  in  this  case  is  the  doctrine  as  to 
the  suspension  and  revival  of  the  risk.  The  doctrine  is  in  strict 
analogy  to  the  rule  in  case  of  temporary  withdrawal  of  the  cargo 
from  the  risks  insured  against,  and  supported  by  considerations  of 
equity  and  commercial  expediency,  and  a  predominant  principle 
in  jurisprudence,  that  unnecessary  forfeitures  are  to  be  avoided. 

735.  If  loss  consequent  upon  an  unseaivorthiness  for  lohich  the 
assured  is  answerable  is  clearly  distinguishable  from  loss  otherwise 
arising  from  the  perils  insured  against,  the  risk  may  continue  in 
respect  to  other  losses,  notwithstanding  the  unseaworthiness.^ 

"It  would,"  says  Mr.  Chief  Justice  Shaw,  "seem  to  be  more 


1  Taylor  v.  Lowell,  3  Mass.  II.  331.     Tcters  v.  Phoenix  Ins.  Co.,  3  Serg*& 

2  Taylor  v.  Lowell,  3  Mass.  R.  331 ;     K.  25. 


SECT.  II.]  SEAWORTHINESS    OF   TUE   SHIP.  417 

consistent  will)  the  nature  of  the  contract,  the  intent  of  the  parties, 
and  the  purposes  of  justice  and  policy,  to  hold,  that,  after  the 
policy  has  once  attached,  the  implied  warranty  should  be  so  con- 
strued as  to  exempt  the  underwriters  from  all  loss  or  damage  which 
did  or  might  proceed  from  any  cause  thus  warranted  against ;  but 
to  hold  him  still  responsible  for  those  losses  which  by  no  possibility 
could  be  occasioned  by  a  peril  increased  or  affected  by  the  breach 
of  the  implied  warranty."  ^ 

The  case  of  continued  liability  for  loss  by  perils  of  seas,  though 
the  implied  warranty  of  documents  of  neutral  ownership  is  not 
complied  with,  is  to  the  same  effect  ;^  and  to  hold  the  contract  to 
be  totally  forfeited  in  such  a  case  is  superfluously  to  inflict  a  penalty 
by  a  forced  construction  of  an  implied  stipulation,  in  contradiction 
to  the  spirit  and  principles  of  the  commercial  law  at  least,  not  to 
say  all  kinds  of  law. 

.  The  same  doctrine  is  adopted  by  the  Superior  Court  of  the  City 
of  New  York,  and  by  the  Supreme  Court  of  the  State  of  New 
York,  and  the  Court  of  Errors  of  the  same  State,  in  case  of  a  ves- 
sel insured  on  time,  and  subsequently  to  the  commencement  of  the 
risk  becoming  unseaworthy  in  consequence  of  not  having  a  small 
bower-anchor,  on  a  passage  from  Charleston  to  St.  Thomas.  Mr. 
Chief  Justice  Savage,  giving  the  opinion  of  the  Supreme  Court, 
says:  "The  fact  that  the  vessel  was  not  supplied  with  anchors 
when  she  left  Norfolk  cannot  excuse  the  insurers,  as  the  loss  was 
sustained  from  an  injury  received  from  the  winds  and  waves  while 
the  vessel  was  at  sea,  where  it  was  totally  immaterial,  as  to  the 
injury,  whether  she  had  one  or  two  anchors,  or  none  at  all."^ 

The  same  doctrine  is  elaborately  maintained  in  the  Court  of 
Errors,  by  Chancellor  Walworth,  and  Senators  Verplanck  and 
Wager,  and   is  not  controverted   by  the  other  members  of  that 


^  Paddock  v.  Franklin  Ins.  Co.,  11  2  Cleveland   v.  Union  Ins.  Co.,  8 

Pick.  227.     The  same  doctrine  is  dis-  Mass.  R.  308  ;  and  see  Starbuck  v. 

tinctly  reiterated  in  a  subsequent  case  New  England  Mar.  Ins.  Co.,  19  Pick, 

before   the    same    court.      Capen   v.  198. 

Washington  Ins.  Co.,  cited  supra.  No.  3  American  Ins.  Co.  v.  Ogden,  15 

527.  Wend.  532. 


418  IMPLIED   WARRANTIES,   CONDITIONS,   ETC.      [CIIAP.  VIII. 

court, ^  and  has  become  intimately  incorporated  with  American 
jurisprudence.  Though  it  is  not  specifically  laid  down  in  English 
jurisprudence,  there  is  some  ground  for  inferring  it  from  the  doc- 
trine that  has  been  stated  in  divers  cases,  that  the  warranty  of 
seaworthiness  as  a  condition  precedent  has  reference  only  to  the 
commencement  of  the  voyage  ;  2  whence  it  may  be  concluded,  that, 
in  intermediate  stages,  it  is  only  an  implied  stipulation  to  exempt 
underwriters  from  loss  by  unseaworthiness,  where  this  is  distin- 
guishable. 


SECTION    in.       LEGAL    CONDUCT. 

736.  It  is  an  implied  stipulation  of  the  policy,  that  the  vessel 
shall  be  navigated,  and  the  adventure  conducted,  according  to  the 
laws  of  the  country  to  which  the  vessel  belongs,  the  treaties  subsist- 
ing between  that  and  other  countries,  and  the  law  of  nations.^ 

We  have  seen  that  the  trade  must  be  legal  ;  this  warranty  has 
reference  to  the  manner  of  carrying  it  on,  and  the  doctrine  stated 
is,  that,  although  the  adventure  itself  be  legal,  yet  if  the  assured 
violate  the  law  in  prosecuting  it,  the  policy  is  thereby  defeated,  as 
far  as  the  illegality  affects  the  risks  insured  against,  and  is  imputa- 
ble to  the  assured.* 

737.  Though  a  temporary,  or  incidental  and  merely  collateral 
illegality,  may  not  contaminate  the  entire  contract  on  the  part  of 
the  assured,  yet,  if  it  is  done  by  himself,  or  ivith  his  authorization 
or  assent,  the  insurers  are  doubtless  exonerated  from  the  consequent 
loss  and  damage  though  caused  immediately  by  the  perils  insured 
against.^ 

738.  This  implied  stipulation  does  not  prevent  insurance  against 
the  illegal  acts  of  others,  as  barratry,  piracy,  ^c. 

739.  If  the  policy  excepts  barratry,  then  this  implied  stipulation 
exonerates  the  inswers  from  loss  and  damage  caused  immediately 

1  S.  C,  20  Wend.  287.  3  Marsh.  177,  book  1,  c.  5,  s.  4. 

2  Iloldsworth  v.  AViso,  7  B.  &  C.  4  Sec  supra,  c.  3,  s.  2,  No.  210,  214, 
794;  lledmaa  v.  Wilson,  14  Mccs.  &     218,  220,  221,  223. 

W.  47C.  5  See  as  above. 


SECT.  IV.]  BELLIGERENT  RISKS.  419 

hy  the  perils  insured  against,  in  direct  consequence  of  barratrous 
acts. 

740.  But  if  the  illegal  acts  by  the  master  or  crew,  in  managing 
and  navigating  the  vessel,  are  not  of  a  barratrous  character,  nor 
directly  or  indirectly  authorized  by  the  assured,  and  are  merely 
negligences  or  mistakes,  this  ivarranty  does  not,  as  I  understand 
the  law,  exonerate  the  insurers  from  the  consequent  loss  by  a  peril 
insured  against. 

The  preceding  propositions  are  involved  in  the  judicial  jurispru- 
dence heretofore  referred  to,  though  the  one  last  stated  was  for- 
merly, and  has  sometimes  been  more  recently,  as  we  have  seen, 
disclaimed,  and  the  opposite  doctrine  asserted. 

741.  This  implied  warranty  of  legal  conduct  is  not  applicable 
to  damage  and  loss  directly  consequent  upon  any  illegality,  with- 
out the  intervention  of  any  peril  expressly  insured  against,  since 
such  loss  does  not  at  all  come  within  the  terms  of  the  policy,  and 
is  wholly  at  the  risk  of  the  assured,  of  whatever  character  or  de- 
gree it  may  be. 

SECTION    IV.       BELLIGERENT    RISKS. 

742.  The  national  character  of  the  ship  or  goods  is  frequently 
the  subject  of  an  express  warranty.  It  is,  however,  implied  by 
the  mere  fact  of  making  the  insurance,  without  any  express  pro- 
vision of  the  policy,  that  the  insurers  are  not  to  be  ansiverable  for 
any  loss  consequent  upon  neglect  of  the  assured  himself  in  preserv- 
ing!; and  manifesting  the  national  character  of  neutral  property 
which  is  insured  by  the  policy,  though  it  is  not  described  as  neu- 
tral in  the  policy. 

Mr.  Justice  Sewall  says:  "The  neutral  character  of  the  pro- 
perty is  understood  by  the  parties,  and  necessarily  inferred,  where 
the  insurance  is  made  by  a  citizen  of  a  neutral  state,  resident 
there,  of  his  own  property  ;  and  without  any  express  representa- 
tion or  warranty,  the  assured  impliedly  engages  to  preserve  his  pro- 
perty, and  to  conduct  the  voyage  insured,  in  a  neutral  condition 
and  character,  to  which  alone  the  insurance  applies."  ^ 

1  Stocker  r.  Merrimack  Ins.  Co.,  6  Mass.  R.  220. 


420  IMPLIED   WARRANTIES,   CONDITIONS,   ETC.       [CHAP.  VIII. 

743.  Under  this  implied  warranty  of  documents  and  insignia  of 
the  real  national  character  of  neutral  property,  the  underwriters 
are  undoubtedly  exonerated  from  loss  by  defect  of  such  evidences 
accompanying  the  subject,  so  far  as  it  depends  upon  himself  and 
his  agetits  for  shipping  the  property  and  furnishing  the  proper  bills 
of  lading,  invoices,  certificates,  &;c. 

The  question,  how  far  any  mistakes  or  negligences  of  the  mas- 
ter or  marijiers  in  maintaining  a  neutral  character  and  observing 
neutral  conduct  are  imputable  to  the  assured  under  this  implied 
warranty,  or  may  be  visited  upon  the  insurers,  has  not  been  dis- 
cussed in  the  judicial  tribunals.  Analogy  is  a  ground  of  inference 
that  a  defect  in  maintaining  the  national  character  of  the  insured 
subject  itself,  whether  ship  or  goods,  is  imputable  to  the  assured, 
however  it  may  have  arisen. 

But  if  the  neutral  character  of  the  ship  is  indirectly  affected  by 
that  of  the  goods,  or  vice  versa,  it  seems  hardly  to  come  within 
this  implied  warranty,  and  rvould  not  exonerate  the  insurers  except 
on  the  ground  of  concealment  or  misrepresentation.  This  distinc- 
tion is  suggested  merely,  and  not  stated  as  a  doctrine  judicially 
established. 

744.  The  underwriters  are  not  liable  for  loss  consequent  upon 
a  neutral  vessel's  taking  false  papers  : 

As  in  case  of  a  Swedish  vessel  belonging  to  Gottenburg,  taking 
papers  purporting  that  she  was  from  Bergen,  another  neutral  port.^ 

745.  According  to  analogy  and  the  weight  of  authority,  there 
is  an  implied  stipidation  on  the  part  of  the  assured  by  the  fact  of 
effecting  the  policy,  that  the  ship  or  goods  insured  are  accompa- 
nied by  documents  and  other  insignia  truly  indicating  their  national 
character. 

Lord  Kenyon  and  IMr.  Justice  Grose  intimated  an  opinion  in 
favor  of  such  a  stipulation  ;  Mr.  Justice  Lawrence  thinking  other- 
wise.2 

Lord  Ellenborough,  in  the  earlier  part  of  the  period  of  his  pre- 
siding in  the  King's  Bench,  and  his  associates,  Grose,  Lawrence, 


•  Ilorncyor  v.  Lusliington,  3  Camp.  -  Christie  r.  Socretan,  8  T.  R.  192. 
Sf),  and  15  East,  4 G.  Set;  also  Stockcr  The  point  is  suggested  also  in  Price 
V.  Merrimack  Ins.  Co.,  C  Mass.  11.  220.     v.  Bell,  1  East,  603. 


SECT.  IV.]  '    BELLIGERENT  RISKS.  421 

and  Le  Blanc,  were  against  such  an  implied  stipulation  in  the  case 
of  a  policy  on  goods  in  an  American  vessel.^ 

Subsequently,  the  same  court,  Bayley  being  substituted  for  Law- 
rence, under  a  policy  upon  an  American  ship  and  cargo,  were  of 
opinion  that  there  was  such  an  implied  stipulation,  where  there 
was  no  express  warranty  or  any  representation  on  the  subject,^  on 
what  seems  to  be  the  true  ground,  that  a  loss  from  want  of  such 
documents  and  insignia  was  through  the  fault  of  the  assured, 
which  would  limit  the  decision  to  those  cases  in  which  the  assured 
can  reasonably  be  presumed  to  have  notice  that  the  evidences  of 
national  character  would  be  requisite. 

In  the  English  Common  Pleas,  Sir  James  Mansfield,  C.  J.,  and 
Heath,  Lawrence,  Chambre,  and  Gibbs,  Justices,"^  fully  concurred 
with  the  decision  last  above  cited.  The  same  court  had  previously 
given  a  similar  opinion.^ 

746.  In  an  earlier  case  than  the  preceding  one,  upon  a  policy 
on  cargo,  the  Supreme  Court  of  New  York,  Kent  being  Chief 
Justice,  intimated  an  opinion  that  documents  of  the  national 
character  of  the  ship  were  not  necessary  to  its  seaworthiness,  and 
were  only  necessary  when  its  national  character  was  expressly 
warranted  or  represented.^  In  this  case  there  was  not  any  fault 
on  the  part  of  the  assured  himself,  as  it  does  not  appear  that  he 
knew  of  the  deficiency  of  the  ship's  documents.  If  the  under- 
writers are  held  to  be  discharged  from  liability  for  the  loss  by  cap- 
ture and  condemnation,  on  this  ground,  it  is  analogous  to  the  case 
of  a  forfeiture  of  the  insurance  on  the  cargo  by  a  shipper,  by  fault 
of  the  ship-owner  in  not  supplying  a  seaworthy  vessel. 

But  such  a  construction  in  reference  to  a  mere  shipper  is  harsh. 
It  is  going  far  enough  in  reference  to  him  to  put  the  case  upon 
the  ground  of  representation  and  concealment.  The  doctrine  will 
then  be,  that,  if  the  shipper  Tinows  of  any  material  circumstance, 
not  knowti  or  presumed  to  he  so  to  the  underwriter,  in  the  owner- 


i  Dawson  v.  Atty,  7  East,  367.  4  Steel  v.  Lacy,  3  Taunt.  285. 

2  Bell  V.  Carstairs,  14  East,  374.  5  Elting  v.  Scott,  2  Johns.  157. 

3  Le  Cheminant  v.  Pearson,  same 
plaintiff  I'.  Allnutt,  4  Taunt.  367. 

VOL.  I.  36 


422  IMPLIED   WARRANTIES,   CONDITION'S,   ETC.      [CHAP.  VIII. 

shi])  or  documentary  evidence  or  other  insignia  of  the  national 
character  of  the  vessel,  ivhereby  it  would  be  liable  to  detention  or 
capture,  he  is  bound  to  disclose  it.  This  is  in  principle  the  ground 
taken  by  the  Enghsh  King's  Bench. ^ 

747.  ji  neutral  shijj  may  carry  belligerent  goods  without  ex- 
press leave  in  the  policy. '^  But  the  assured,  if  he  knows  of  such 
goods  being  carried,  or  intended  to  be  so,  is  bound  to  represent 
the  fact? 

748.  Whether  the  policy  implies  that,  if  the  assured  is  apprised 
or  has  reason  to  suppose,  that  the  goods  insured,  or  to  be  carried 
in  the  vessel  insured,  or  of  which  the  freight  is  insured,  are  con- 
traband of  war,  the  underwriters  are  not  to  be  liable  for  conse- 
quent detention  or  other  loss,  unless  such  fact  is  known  to  them, 
or  presumed  to  be  so  ? 

There  are  divers  decisions  that  underwriters  are  liable  for  such 
loss  without  any  actual  or  presumed  notice  of  such  risk.^ 

The  circumstance  of  the  goods  being  contraband  is  undoubtedly 
very  material  to  the  risk.  It  would  therefore  appear  to  be  remark- 
able to  find  the  principle  established  by  different  courts,  that  the 
fact  of  the  goods  being  contraband  should  not  affect  the  policy, 
though  that  fact  were  not  represented  or  stated  in  the  policy, 
were  it  not  recollected  that  during  the  wars  between  England  and 
France,  from  1790  to  1815,  the  courts  of  those  countries,  and 
more  especially  the  vice-admiralty  courts,  established  in  the  colo- 
nies, considered  very  many  articles  as  belonging  to  the  class  of 
contraband.  Most  of  the  courts  of  the  United  States  adopted  the 
principle  of  the  English  courts,  that  foreign  judgments  are  conclu- 
sive as  to  the  facts  adjudged.  Unless,  therefore,  they  had  permit- 
led  the  assured  to  insure,  without  any  representation  or  specifica- 
tion in  the  policy,  articles  which  the  foreign  courts  condemned  as 
contraband,  insurance  would  have  afforded  but  a  very  imperfect 


1  Barker  v.  Blakes,  9  East,  283.  487  ;  Seton  v.  Low,  1  id.  1 ;  Skidmore 

2  Ibid.  V.  Desdoity,  2  id.  7  7;  Richardson  v. 

3  Vide  supra,  No.  713.  Maine  Fire  &  Mar.  Ins.  Co.,  6  Mass. 

4  Juhel    V.   Khinulander,   2  Johns.  R.  102. 
Cas.  1 20  ;  Khinelandcr  v.  Juhel,  2  id. 


SECT.  IV.]  BELLIGERENT  RISKS.  423 

indemnity  against  the  peril  of  capture.  But  both  of  these  prin- 
ciples, as  well  that  which  makes  a  foreign  judgment  conclusive, 
otherwise  than  as  between  the  parties  to  it,  as  that  which  permits 
the  insurance  of  contraband  goods  without  any  specification  of 
them  in  the  policy,  or  any  representation  of  their  contraband 
character,  seem  to  admit  of  very  serious  doubt. 

The  legal  right  of  a  neutral  to  carry  goods  contraband  of  war, 
unless  forbidden  by  treaty  or  statute,  is,  as  we  have  seen,  recog- 
nized by  good  authority.  Such  right,  and  that  of  a  belligerent  to 
confiscate  such  goods,  are  sometimes  said  to  be  in  conflict.  But 
two  principles  of  law  cannot  be  inconsistent,  though  one  is  that  of 
national  law  and  the  other  that  of  the  municipal  law.  One  of 
them  must  predominate.  If  two  propositions  are  contradictory, 
one  of  them,  at  least,  is  not  law.  The  only  way  of  reconciling 
these  rights  is  by  saying,  that  the  right  of  the  neutral  to  carry  con- 
traband goods  is  qualified  by  its  being  subject  to  that  of  the  belli- 
gerent to  seize  and  confiscate  them,^  which  is  certainly  not  a  very 
satisfactory  basis  of  a  right. 

However  this  may  be,  we  are  safe  in  saying  that,  to  the  present 
purpose,  the  question  is  not  one  of  legality,  but  of  contract,  express 
or  implied.  And  considering  it  in  this  light,  the  general  funda- 
mental doctrines  of  representation  and  implied  warranty  plainly 
lead  to  the  conclusion,  that 

The  assured  is  bound  by  an  implied  stipulation  to  disclose  this 
risTc  by  representation,  upon  the  principles  and  subject  to  the 
qualifications  and  exceptions,  applicable  in  reference  to  other 
material  facts,  according  to  the  doctrine  already  stated  under  the 
head  of  representation.^ 

749.  Chief  Justice  Marshall  says  :  "It  is  not  impossible  that, 
without  a  warranty  that  the  vessel  is  neutral  property,  the  attempt 
of  a  neutral  vessel  to  enter  a  blocl^aded  port  might  be  considered 
as  discharging  the  underwriters."  ^  It  can  hardly  be  doubted  that 
it  would  discharge  the  underivriters  from  all  loss  consequent 
thereon. 

1  Barker  v.  Blakes,  9  East,  283;        2  Supra,  No.  624,  629. 
Richardson  v.  Maine  Fire  &  Mar.  Ins.        3  Maryland  Ins.   Co.  v.  Woods,  6 
Co.,  6  Mass.  R.  102.  Cranch,  29. 


424  IMPLIED   WARRANTIES,   CONDITIONS,   ETC.      [CHAP.  VIII. 

750.  It  is  one  of  the  implied  conditions  of  the  policy  that  the 
vessel  shall  have  convoy  for  the  voyage,  where  convoy  is  required 
by  laic,  and  where  the  sailing  without  it  is  not  excused  by  the  cir- 
cumstances.i 

751.  A  non-compliance -with  the  implied  stipulation  for  the 
evidences  and  insignia  of  the  national  character  of  the  vessel 
does  not  discharge  the  underwriters  from  all  subsequent  liability. 
So  far  as  any  enhancement  of  the  risk  in  this  respect  is  imputa- 
ble to  the  assured,  he  must  bear  the  consequent  loss  ;  the  insurers 
at  the  same  time  continuing  to  be  liable  in  other  respects.^ 


SECTION    V.       THE    ABROGATION    OF    AN    IMPLIED    WARRANTY,    CON- 
DITION,   OR    STIPULATION. 

752.  The  implied  warranty  of  seaworthiness  may  be  expressly 
superseded,  as  by  the  phrase  "allowed  to  be  seaworthy."^ 

So  also  the  forfeiture  by  a  violation  of  an  implied  condition  may 
be  cancelled  by  a  written  declaration.^ 

An  implied  condition  "may  be  superseded  by  a  verbal  or  writ- 
ten statement."  ^ 

753.  Survey  of  the  ship  by  surveyors  acting  for  the  under- 
writers preliminary  to  the  agreement  to  insure,  in  pursuance  of  an 
express  standing  regulation  of  the  insurance  company,  is  not  a 
waiver  on  their  part  of  their  right  to  insist  on  the  implied  warranty 
of  seaworthiness  : 

As  under  a  rule  of  the  Newfoundland  insurance  companies, 
specifying  that  "the  survey  should  be  the  groundwork  of  the 
policy."  6 

1  D'  Aguilar  v.  Tobin,  1  Holt,  185.  5  per  Wilde,  J.,  Parks  v.  General 

2  Bell  V.  Carstairs,  14  East,  37-1;  Interest  Ins.  Co.,  5  Tick.  34.  Whether 
Cleveland  v.  Union  Ins.  Co.,  8  Mass.  advertising  to  take  goods  by  particular 
It.  308 ;  Polleys  v.  Ocean  Ins.  Co.,  2  boats  is  a  waiver  of  the  implied  war- 
Shcpley's  (Maine)  R.  141;  and  cases  ranty  of  seaworthiness?  ISIississippi 
cited  siij»ra,  No.  735.  Ins.  Co.  v.  Stanton,  2  Smedes  &  Marsh. 

3  Phillips  V.  Nairnc,  16  L.  J.  Com.  (]\Iiss.)  R.  340. 

PI.  194.  c  Damson  i-.  Cawley,  Newfoundland 

<  Weir  V.  Aberdeen,  2  B.  &  Aid.     R.  433. 
320. 


CHAPTER    IX. 


EXPRESS  WARRANTIES,  STIPULATIONS,  AND  CONDITIONS. 


Sect.  1.  What  constitutes  an  express  war- 
ranty. 

2.  Construction  of,  and  compliance 

with  an  express  warranty. 

3.  Warranty  of  the  time  of  sailing. 

4.  "        of  convoy. 

5.  "  of  neutral  property,  its 
form,  import,  and  construction. 
Ownership. 

6.  Origin    of    property    warranted 

neutral. 

7.  Documents,  proofs,  and  insignia 

of  neutral  property. 


Sect.  8.  Warranty    of    neutral    property 
requires  neutral  trade,  employ- 
ment, and  conduct. 
9.  Particular  warranties  and  condi- 
tions. 

10.  Warranties,  conditions,  and  sti- 

pulations in  fire  policies. 

11.  Warranties,  conditions,  and  sti- 

pulations in  life  policies. 

12.  Stipulation  for  set-off. 

13.  Waiver    of   forfeiture    by    non- 

compliance  with    an    express 
warranty. 


SECTION    I.       WHAT    CONSTITUTES    AN    EXPRESS    WARRANTY. 

754.  Aj\r  express  warranty  is  an  agreement  expressed  in  the 
policy,  whereby  the  assured  stipulates  that  certain  fads  are,  or 
shall  be,  true,  or  certain  acts  shall  be  done,  relative  to  the  risk. 
It  may  relate  to  an  existing  or  past  fact,  or  be  promissory  and  re- 
late to  the  future. 

755.  It  is  not  requisite  that  the  circumstance  or  act  warranted 
should  be  material  to  the  risk ;  in  this  respect  an  express  war- 
ranty is  distinguished  from  a  representation.  Lord  Eldon  says : 
"It  is  a  first  principle  in  the  law  of  insurance,  that,  if  there  is  a 
warranty,  it  is  a  part  of  the  contract  that  the  matter  is  such  as  it 
is  represented  to  be.  The  materiality  or  immateriality  signifies 
nothing."  ^ 

756.  An  express  warranty  or  condition  is  always  a  part  of  the 
policy,  but,  like  any  other  part  of  the  express  contract,  may  be 


1  Newcastle  Fire  Ins.  Co.  v.  !RIacmorran,  3  Dow,  255. 
36* 


426  EXPRESS   WARRANTIES,    STIPULATIONS,   ETC.      [CIIAP.  IX. 

written  in  the  margin}  or  contained  in  jjroposals  or  documents 
expressly  referred  to  in  the  policy,  and  so  made  part  of  it.^ 

An  insurance  of  goods  described  in  the  policy  to  be  made  "  for 
account  of  M.,  of  B.,"  was  considered  to  be  equivalent  to  a  repre- 
sentation that  he  was  owner,  and  that  the  insurance  was  for  his 
benefit,  and  he  being  an  American,  and  so  known  to  the  parties, 
the  insurance  was  considered  to  be  on  American  or  neutral  pro- 
perty.^ 

757.  A  warranty  is  often  made  by  saying  expressly  in  the  policy 
that  the  assured  "warrants"  such  a  fact : 

As,  "Warranted  the  property  of  the  assured,  all  Americans."'* 

But  a  formal  expression  of  this  sort  is  not  requisite  to  consti- 
tute a  U'arranty.  Any  direct,  or  even  incidental,  allegation  of  a 
fact  relating  to  the  risk,  has  been  held  to  constitute  a  warranty. 

If  insurance  is  made  on  "the  Swedish  brig  S,"  "the  American 
ship  M.,"  "the  Spanish  brig  N.  C,"  Stc,  or  on  goods  on  board 
of  vessels  so  described,  it  is  a  warranty  that  the  vessel  is  Swedish, 
American,  or  Spanish.^ 

A  vessel  being  insured,  in  time  of  peace,  as  "  the  British  brig," 
Sic,  this  is  a  warranty  that  she  belongs  to  British  owners  ;  that 
her  documents  and  equipments  are  those  of  a  British  vessel  ;  and 
that  she  is  navigated  in  the  character  of  such  a  vessel.^  But  de- 
scribing the  vessel  in  the  policy  by  an  English  name  is  not  a  war- 
ranty of  its  having  an  English  national  character." 

A  statement  in  the  policy  that  the  vessel  was  in  port  on  a  cer- 
tain day,  was  held  to  be  a  warranty  of  that  fact.^ 

1  Dennis  v.  Ludlow,  2  Caines,  111 ;  Lotlilau  v.  Henderson,  3  B.  &  P.  499  ; 
Bean  i'.  Stupart,  1  Doug.  1 0 ;  Kenyon  Barker  v.  Phcenis  Ins.  Co.,  8  Johns. 
V.  Bertbon,  id.  12,  n.  307 ;  Goix  v.  Low,  1  Johns.  Cas.  341 ; 

2  Ptoutledgc  V.  Burrell,  1 IL  B.  254  ;  Murray  v.  United  Ins.  Co.,  2  id.  168 ; 
Worsley  v.  Wood,  G  T.  R.  710.  Vandenheuvel  r.  United  Ins.  Co.  2  id. 

3  Kemble  v.  Ilhinelander,  3  Johns.  127;  Wood  r.  Hartford  Ins.  Co.,  13 
Cas.  130.  Conn.  R.  533. 

*  Jenks  V.  Ilallett,  1  Caines,  60.  6  Francis  v.  Ocean  Ins.  Co.,  6  Co- 

5  Sec  Lewis  v.  Thatcher,  15  Mass.  wen,  404. 

R.  431  ;  Iliggins  v.  Livcrmore,  14  id.  7  Claphani  r.  Cologan,  3  Camp.  382. 

106  ;  Atherton  r.  Brown,  14  id.  152 ;  8  Kenyon  v.  Berthon,  1  Doug.  12,  n. 


SECT.  I.]      WHAT   CONSTITUTES   AN  EXPRESS   WARRANTY.  427 

758.  Doubts  were  entertained  by  the  judges  in  Pennsylvania, 
whether  insurance  "on  the  good  British  brig  called  The  John/' 
was  necessarily  a  warranty  of  the  national  character  of  the  vessel. 
Whether  these  words  would  amount  to  a  warranty,  and  what  con- 
struction was  to  be"  put  upon  them,  Judges  Yeates  and  Bracken- 
ridge  thought  would  depend,  not  only  upon  the  words  themselves, 
and  the  manner  and  connection  in  which  they  were  introduced 
into  the  policy,  but  also  upon  the  whole  policy.  Mr.  Justice 
Yeates  was  of  opinion,  that  this  description  was  not  a  warranty  of 
national  character,  because  the  risks  insured  against  could  not  be 
affected  by  the  fact  that  the  vessel  was  British,  since  she  was  in- 
sured against  sea-risks  only  ;  and  the  risk  was  to  end  on  capture.^ 
This  distinction  seems  to  be  just ;  for,  though  the  materiality  of 
the  fact  stated  in  the  policy  is  not  requisite  to  constitute  a  war- 
ranty, yet  there  seems  to  be  no  reason  for  considering  the  state- 
ment or  recital  of  a  fact  to  he  a  ivarranty,  if  it  evidently  cannot 
have  any  relation  to  the  risJc.  But  a  fact  expressed  in  the  policy 
will  no  doubt  be  presumed  to  have  relation  to  the  risk,  unless  it 
appears  that  it  can  have  no  such  relation. 

Thus,  if  it  could  have  been  supposed,  in  the  preceding  case, 
that  the  insurer  might  prefer  to  insure  a  British  vessel  against  sea- 
risks,  rather  than  one  of  any  other  national  character,  the  descrip- 
tion might  be  considered  a  warranty,  a  compliance  with  which 
would  be  a  condition  on  which  the  liability  of  the  underwriter 
would  depend,  though  all  other  underwriters  should  be  of  opinion 
that  the  sea-risk  would  be  less  upon  an  American  or  French  ves- 
sel. But  if  the  national  character  of  the  vessel  could  not  have 
any  relation  to  the  sea-risk,  there  seems  to  be  no  reason  for  con- 
sidering it  a  warranty. 

This  distinction  can  apply,  however,  only  to  facts  incidentally 
expressed,  or  introduced  by  way  of  recital,  or,  as  in  the  above 
case,  merely  as  description,  and  not  purporting  on  the  face  of  the 
policy  to  be  stipulations.  In  such  cases  it  seems  to  be  quite  rea- 
sonable to  adopt  the  distinction  made  in  the  above  case  in  the 

1  Mackie  v.  Pleasants,  2  Binn.  363. 


428  EXPRESS   WARRANTIES,    STIPULATIONS,   ETC.     [CIIAP.  IX. 

construction  of  marine  policies,  as  it  has  been  adopted  in  respect 
to  those  against  fire.^ 

An  analogous  but  broader  doctrine  prevails  in  respect  to  a  bill 
of  lading,  "which,"  says  Mr.  Greenleaf,  "may  be  contradicted 
and  explained  in  its  recital,  that  the  goods  were  in  good  order  and 
well  conditioned,  and  in  any  other  fact  which  it  erroneously  re- 
cites." 2 

759.  The  insurance  of  goods  to  a  certain  port,  as  to  "  port 
Sisal,"  is  not  a  tvarranty  that  the  place  has  any  port  or  harbor 
belonging  to  it.  The  meaning  of  the  expression  is  to  be  deter- 
mined by  the  fact,  with  which  the  underwriter  is  supposed  to  be 
acquainted.'^ 

Where  the  policy  was  expressed  to  be  "on  the  cargo,  being 
1031  hogsheads  o^  wine,"  the  cargo  consisted  of  the  wine  insured, 
and  also  eight  cases  of  British  manufactured  goods.  In  behalf  of 
the  underwriters  it  was  contended,  that  this  should  be  considered 
a  warranty  that  the  whole  cargo  consisted  of  the  wine  insured. 
Lord  Ellenborough  said  :  "I  think  'the  cargo'  does  not  mean  the 
'whole  cargo,'  but  merely  that  the  insurance  shall  attach  upon 
that  part  of  the  cargo  which  consists  of  the  1031  hogsheads  of 
wine.  The  risk  was  not  increased  by  other  goods  being  put  on 
board."  4 

760.  As  any  statement  of  a  fact  in  the  policy  is  a  warranty, 
though  neither  the  word  warrant,  nor  any  formal  expression  of 
like  import,  is  used  ;  so  there  is  frequently  a  warranty  in  form  of 
expression,  where  there  is  none  in  fact.  The  assured  often 
"warrants"  the  property  "free  from  average,"  "detention,"  or 
"capture,"  or  from  other  losses  and  perils,  which  is  no  more 
than  an  agreement  that  those  shall  not  be  among  the  perils 
and  losses  insured  against,  and  for  which  the  underwriter  is  to 
be  liable. 

1  See  section  10  of  this  chapter.  3  N.  Ilamp.  580;  May  v.  Babcock,  4 

2  1  Grecnl.  Ev.,  cd.  of  1842,  p.  354,     Ohio  11.  334. 

8.  305.     And  he  cites  Barrett  v.  Ho-         a  Dclonguemare  v.  N.  Y.  Firemen's 

gcrs,  7  Mass.  K.  '>'J7 ;  Benjamin  v.  Sin-    Ins.  Co.,  10  Johns.  120. 

clair,  1  Bailey,  1 74  ;  Smith  v.  Brown,        4  Muller  v.  Thompson,  2  Camp.  GIO 


SECT.  I.]      WHAT   CONSTITUTES   AN   EXPRESS   WARRANTY.  429 

Although  these  forms  of  expression  are  sometimes  spoken  of  as 
warranties,  it  would  be  absurd  to  consider  them  such  in  their  cha- 
racter and  construction,  since,  in  the  case  of  an  insurance  "  free 
from  average,"  for  instance,  it  would  be  adopting  the  doctrine  that 
the  occurrence  of  an  average  loss  would  render  the  policy  void. 

A  stipulation  in  a  policy  upon  a  ship,  that  the  insurers  are  not 
to  be  "  liable  to  any  damage  to  or  from  her  sheathing,"  was  held, 
in  Massachusetts,  not  to  be  a  warranty  that  the  ship  was  sheathed 
or  should  be  kept  so,  but  merely  an  exoneration  of  the  insurers 
from  all  loss  and  damage  to  or  on  account  of  the  sheathing.^ 

In  a  policy  on  a  vessel  for  a  year,  a  clause  excluding  all  ports 
and  places  in  INIexico,  Texas,  and  the  West  Indies,  from  July  15th 
to  October  15th,  was  held  by  Mr.  Justice  Story  to  be  an  excep- 
tion of  the  risks  in  those  ports,  not  a  warranty  against  being  at 
them  during  that  time.^ 

A  steamboat  having  been  insured  one  month,  and  sustained 
damage  during  that  time,  was  insured  by  the  same  underwriter 
against  all  risks,  on  condition  that  the  damage  sustained  under  the 
prior  policy  should  be  first  repaired,  during  the  first  month,  and 
before  the  completion  of  the  repairs,  it  was  sunk.  Held,  in  Louis- 
iana, that  this  was  not  a  condition  precedent  to  be  complied  with 
before  the  risk  commenced  on  the  second  policy,  but  merely  a 
stipulation  that  the  repairs  should  be  immediately  made,  and  that 
the  insurers  were  liable  in  the  mean  time  on  the  latter  policy.'' 

161.  A  rule  of  a  mutual  insurance  association  merely  directory 
to  its  committee  in  examining  vessels,  is  not  an  express  warranty : 

As  the  rule  requiring  "all  ships  to  be  inspected  and  approved 
by  a  committee  of  the  club  before  admission  :  All  ships  hereby 
insured  to  be  well  found,  and  otherwise  in  a  seaworthy  state,  as  to 
the  committee  or  their  inspector  shall  from  time  to  time  seem 
meet :  All  chain  cables  to  be  properly  tested."  This  was  held 
not  to  be  a  warranty  by  the  assured  that  the  cable  had  been  well 
tested.'* 

'  Martin  v.  Fishing  Ins.  Co.,  20  Pick.  3  Hyde  v.  ]\Iiss.  Ins.  Co.,  10  La.  R. 

389.  525. 

2  Palmer  v.  The  Warren  Ins.  Co.,  ^  Harrison  v.  Douglas,  5  N.  &  M. 

1  Story's  R.  360.  180;  S.  C,  3  Ad.  &  El.  396. 


430  EXPRESS    WARRANTIES,    STIPULATIONS,   ETC.      [CIIAP.  IX. 


SECTION   II.       CONSTRUCTION    OF,    AND    COMPLIANCE    WITH    AN    EX- 
PRESS   WARRANTY. 

762.  It  is  another  distinction  of  an  express  warranty  or  con- 
dition from  a  representation,  that  an  express  warranty  must  he 
^'strictly/'  and  it  is  even  said  ^' literally,^'  complied  with  ;  whereas 
it  is  sufficient  that  a  representation  is  complied  with  substantially. 

It  is  held,  that  the  intention  of  the  parties  in  a  warranty,  except 
as  to  the  meaning  of  the  words  used,  is  not  to  be  inquired  into  ; 
the  assured  has  chosen  to  rest  his  claims  against  the  insurers  on  a 
condition  inserted  in  the  contract,  and  whether  the  fact  or  engage- 
ment, which  is  the  subject  of  the  warranty,  be  material  to  the  risk 
or  not,  still  he  must  bring  himself  strictly  within  that  condition. 
The  rigid  construction  put  upon  warranties,  in  this  particular,  has 
perhaps  arisen,  in  part,  from  the  maxim  of  the  cornmon  law,  that 
conditions  are  to  be  severely  construed  in  regard  to  the  party  im- 
posing them  on  himself. 

"A  warranty,"  says  Lord  Mansfield,  "must  be  strictly  performed, 
nothing  tantamount  will  do."  ^ 

Mr.  Justice  Buller :  "  It  is  a  matter  of  indifference  whether  the 
thing  warranted  be  material  or  not,  but  it  must  be  literally  com- 
plied with."  ^ 

Mr.  Justice  Ashhurst :  "  The  very  meaning  of  a  warranty  is,  to 
preclude  all  questions  whether  it  has  been  substantially  complied 
with  ;  it  must  be  literally."  ^ 

And  Lord  Eldon  :  "When  a  thing  is  warranted,  it  must  be 
exactly  what  it  is  stated  to  be."* 

But  since  the  real  meaning  of  a  warranty  is  not  always  the 
literal  meaning  of  each  word  and  phrase,  it  is  surely  sufficient  in 

1  Pawson   V.  Watson,   Cowp.   785.  2  Blackhurst  v.  Cockell,  3  T.  R, 

Sec  as  to  construction  of,  and  compli-  300. 

ancc  with,  representations  and  war-  3  De  Ilalin  v.  Hartley,  1  T.  R.  343  ; 

ranties,  supra  70,  71,  72,  485  et  seq.,  2  T.  R.  186. 

527,  553,  509,  575,  003,  038,  G40,  C41,  4  Newcastle  Fire  Ins.  Co.  r.  Mac- 

C52,  GC9,  070, 073,074  ;  and  infra,  866  morran,  3  Dow,  255. 
-871,872,892. 


SECT.  II.]     CONSTRUCTION  OF,  AND  COMPLIANCE  THEREWITH.        431 

this  contract,  as  in  others,  that  an  express  provision  has  been  com- 
plied with  according  to  its  real  meaning,  ascertained  by  the  esta- 
blished rules. 

I  cannot,  therefore,  but  doubt,  on  again  examining  a  decision  of 
the  English  King's  Bench,  in  Lord  Mansfield's  time,'  whether  it 
is  marked  with  the  comprehensive  justness  generally  characteristic 
of  his  opinions.  It  was  upon  a  policy  on*a  cargo  from  Africa  to 
the  West  Indies,  in  the  margin  of  which  was  the  statement,  "  sailed 
from  Liverpool  with  14  six-pounders,  &;c.,  and  50  hands  or  up- 
wards." The  vessel  had  left  that  port  with  oniy  46  hands,  quite 
as  safe  for  the  time  as  with  50,  and  taken  on  board  the  comple- 
ment at  Beaumaris,  in  the  Isle  of  Anglesea,  where  she  arrived  in 
six  hours  from  Liverpool.  The  apparently  real  meaning  of  the 
statement  seems  to  have  been,  that  she  had  gone  on  her  outward 
passage  with  fifty  hands  ;  and  this  meaning  was  strictly  complied 
with  ;  and  though  it  was  not  literally  expressed,  it  was  adequately 
signified,  by  such  a  memorandum. 

76-3.  The  acts  of  the  master  and  those  of  other  agents  are  im- 
putable to  the  assured  in  reference  to  non-compliance  ivith  an 
express  ivarranty.^ 

764.  A  non-compliance  with  a  formal,  direct,  express  war- 
ranty, though  temporary,  and  though  the  risk  from  such  non- 
compliance is  wholly  distinct  from  the  other  risks  insured  against, 
will,  if  it  is  simultaneous  with  the  time  for  the  commencement  of 
the  risk,  wholly  defeat  the  policy. 

Under  a  policy  upon  a  ship  and  cargo  from  London  to  Guern- 
sey, and  thence  to  the  coast  of  Africa,  "warranted  American  pro- 
perty," the  ship,  on  the  passage  to  Guernsey,  had  not  the  pass- 
port provided  for,  as  one  of  the  documents  of  national  character, 
in  the  treaty  between  the  United  States  and  France.  She  took  it 
at  Guernsey,  and  was  subsequently  captured  by  the  French. 
Lord  Kenyon  and  Justices  Grose  and  Ashhurst  held  the  under- 
writers not  to  be  at  all  liable  on  the  policy.^ 

1  De  Hahn  v.  Hai'tley,  1  T.  R.  343  ;  Wendell,  488  ;  and  see  cases  gene- 
unanimously  confirmed  in  the  Court     rally. 

of  Exchequer,  2  T.  R.  186.  3  Rich  v.  Parker,  7  T.  E.  705;  S. 

2  Duncan  v.  Sun  Fire  Ins.  Co.,  G     C,  2  Esp.  615.     See  also  Woolmer  v. 


432  EXPRESS   WARRANTIES,   STIPULATIONS,   ETC.      [CHAP.  IX. 

765.  Where  an  equitable  and  substantial  fulfilment  is  the 
same  as  a  strict  and  literal  one,  a  representation  and  warranty 
are  equivalent  to  each  other ;  as  was  held  in  New  York  in  respect 
to  a  representation  or  warranty  of  the  neutral  character  of  pro- 
perty.i 

766.  Though  a  strict  compliance  with  a  warranty  is  required, 
yet  the  construction  of  the  language  is  determined,  as  in  other 
cases,  by  usage  and  common  acceptation. 

Where  the  warranty  was  that  the  vessel  had  "thirty  seamen" 
on  board,  and  to  make  up  the  number  it  was  necessary  to  include 
the  steward,  cook,  surgeon,  some  boys  and  apprentices.  Lord 
Mansfield  said  :  "The  question  was  whether,  in  this  warranty,  the 
word  seamen  was  used  in  the  strict  literal  sense,  or  not.  If  it  was, 
the  warranty  has  not  been  complied  with.  It  is  a  matter  of  con- 
struction. Boys  are  reckoned  seamen,  not  only  at  the  custom- 
house and  Greenwich  Hospital,  but  in  the  distribution  of  prizes. 
There  is  scarcely  now  such  a  thing  as  a  ship  entirely  manned  with 
seamen,  strictly  so  called."  And  it  was  held  that  the  warranty 
had  been  complied  with.^ 

767.  Mr.  Justice  Kent  said:  "A  warranty  must  be  literally 
complied  with  ;  but  this  strict  compliance  ought  to  operate  in 
favor  of,  as  ivell  as  against,  the  assured,  whenever  he  can  bring 
himself  within  the  terms  of  it."^ 

An  instance  of  this  occurred  in  the  case  of  a  warranty  that  "the 
ship  should  have  twenty  guns."  She  had  in  fact  twenty-two  guns, 
but  only  twenty-five  men,  a  number  quite  short  of  the  necessary 
complement  for  twenty  guns.  Lord  Mansfield  held  this  to  be 
a  compliance  with  the  warranty.  He  said:  "If  a  warranty  be 
intended  to  mislead,  it  is  a  fraud."  In  this  case  there  is  no 
ground  to  im[)ute  fraud,  and  therefore  the  assured  is  entitled  to 
recover."  ' 

But  wc  must  presume  that  it  was  a  substantial  compliance,  so 

Muilnmn,  3  Burr.  1419 ;  S.  C,  1  W.  2  jjean  v.  Stupart,  1  Doug.  10. 

Bl.  427  ;  Fernandcs  v.  Da  Costa,  Park,  ^  Kemblc  v.  Rhinelander,  3  Johns. 

177;  Marsli.  Ins.,  'id  cd.,  394.  Cas.  130. 

'  Vandt'ulicuvcl  r.  Church,  2  Johns.  ''Hyde  v.  Bruce,  Marsh.  347;   3 

Cas.  173,  n.  Doug.  213. 


SECT.  II.]      CONSTRUCTION  OF,  AND  COMPLIANCE  THEREWTLTU.       433 

that  the  risk  was  not  enlianced  in  the  particular  case,  otherwise 
such  a  construction  would  annul  the  warranty. 

768.  The  same  strictness  in  construing  the  statements  incident- 
ally made  in  the  policy  is  said  not  to  prevail  to  the  same  extent 
on  the  continent  of  Europe. 

Emerigon  says,  if  insurance  be  made  on  a  vessel  described  in 
the  policy  to  be  "a  ship,"  which  is  in  fact  a  brig  or  sloop,  the 
policy  is  void,  provided  the  insurers  did  not  know  what  sort  of 
vessel  it  was,  since  they  might  have  been  led  by  the  description 
to  form  too  favorable  an  estimate  of  the  risk  ;  but  if  they  were 
acquainted  with  the  vessel,  they  will  be  bound  by  the  contract. 
He  says,  if  the  vessel  be  superior  or  equivalent  to  what  it  is 
described  to  be,  the  conditions  of  the  contract  will  be  satis- 
fied.i 

Our  law  does  not  go  to  this  extent,  though  there  is  nothing  in 
principle  to  prevent  a  fact  stated  in  the  policy  being  put  upon  the 
same  footing  as  one  stated  in  a  written  representation,  unless  it  is 
stated  in  the  policy  in  a  formal  phrase  of  warranty  or  condition, 
importing  that  an  exact  compliance  was  deemed  material  by  the 
parties.  The  precedents  in  our  law,  however,  stop  short  of  this, 
and,  as  already  stated,  only  go  to  the  doctrine,  that,  where  facts 
are  stated  merely  by  way  of  recital  or  description,  and.  are  not 
material  to  the  risJc,  the  clause  is  not  a  condition  or  warranty. 

769.  A  compliance  with  a  warranty,  or  any  other  agreement, 
is  dispensed  with,  if  it  be  rendered  unlawful  by  a  law  enacted 
after  the  time  of  mahing  the  policy.'^  But  if  it  is  unlawful  at  the 
time  of  making  the  policy,  the  contract  is  void. 

770.  Where  the  fact  warranted  is  falsified  by  the  direct  effect 
of  a  peril  insured  against,  it  is  not  a  breach  of  the  warranty  : 

As  where  the  warranty  is  of  "lawful  trade,"  barratry  being  in- 
sured against,  and  the  loss  is  by  barratrous  unlawful  trade  by  the 
master.^ 


1  1  Emerigon,  c.  6,  s.  3.     See  also  371 ;  S.  C,  1  Salk.  198.     See  also  1 
Pothier,  n.,  106.  Emer.  543,  c.  12,  s.  31. 

2  Brewster  v.  KItchell,  Ld.  Raym.,  3  Havelock  v.  Hancill,  3  T.  R.  277. 

VOL.  I.  37 


434  EXPRESS   WARRANTIES,   STIPULATIONS,  ETC.      [CHAP.  IX. 

Suppose  a  ship,  insured  against  arrests  and  detention,  to  be 
warranted  to  sail  on  or  before  a  certain  day,  and  prevented  from 
sailing  by  an  arrest  and  detention. ^  The  embargo  or  other  cause 
of  detention  may  be  removed  before  the  assured  has  intelligence 
of  it,  which  will  take  away  his  right  of  abandoning  and  claiming 
for  a  total  loss.  His  insurance  will  therefore  be  defeated,  unless  a 
literal  fulfilment  of  the  warranty  is  dispensed  with,  in  case  of  the 
non-compliance  being  occasioned  by  some  of  the  perils  insured 
against. 

It  will  subsequently  appear,  that  a  deviation  from  the  ordinary 
course  of  the  voyage  is  justified,  where  it  is  occasioned  by  the 
operation  of  some  of  the  perils  assumed  by  the  underwriters,  or  to 
which  it  is  understood  that  the  subject  is  to  be  exposed,  which 
seems  to  be  an  analogous  case. 

771.  A  warranty  has  been  defined  to  be  a  condition  precedent, 
but  this  definition  is  applicable  only  to  a  warranty  relating  to  the 
commencement  of  the  risk.  If  a  icarranty  relates  to  a  circum- 
stance necessarily  subsequent  to  the  commencement  of  the  risk,  as 
that  the  ship  shall  take  an  armament  at  an  intermediate  port  in 
the  course  of  the  voyage,  the  assured  is  entitled  to  recover  for 
an  antecedent  loss,  though  the  tvarranty  should  not  be  complied 
with. 

The  premium  is  due  in  this  case,^  therefore  a  previous  loss  may 
be  recovered,  since  it  supposes  a  valid  contract  to  have  subsisted, 
at  some  time,  between  the  parties. 

Chief  Justice  Parsons  intimates,  that  the  right  of  recovering 
such  previous  loss  might  perhaps  depend  in  some  measure  upon 
the  circumstance  of  the  policy  being  made  before  or  after  the  loss 
actually  takes  place  ;^  but  it  does  not  appear  upon  what  principle 
such  a  distinction  can  be  made. 

Mr.  Justice  Sewall,  in  giving  the  decision  of  the  court,  laid 
down  the  principle  that  a  loss,  happening  before  a  forfeiture  of 
the  implied  warranty  of  seaworthiness,  might   be   recovered   not- 


1  Sec  Cruiksliank  r.  Janscn,  2  Taunt.  301. 

2  Hendricks  v.  Commercial  Ins.  Co.,  8  Johns.  1. 

3  3  Mass.  II.  337,  310. 

• 


SECT.  II.]      CONSTRUCTION  OF,  AND  COMPLIANCE  THEREWITU.       435 

withstanding  such  forfeiture,  but  he  did  not  distinctly  express  an 
opinion  in  regard  to  the  right  of  recovering,  subsequently  to  a  for- 
feiture of  an  express  warranty,  for  an  antecedent  loss.^ 

In  this  case,  as  in  others  analogous  to  it,  a  loss  happening  in 
the  earlier  stages  of  the  risk  may,  by  the  terms  of  the  policy,  be 
recoverable  before  the  forfeiture  of  the  warranty. 

Mr.  Arnould^  adheres  to  the  doctrine  that  a  non-compliance 
with  a  warranty  at  any  stage  of  the  voyage  discharges  the  under- 
writers from  all  loss,  whether  prior  or  subsequent.^ 

771  a.  The  doctrines  relative  to  the  construction  of  express 
warranties  and  compliance  thereivith,  are  illustrated  hy  divers 
cases  on  policies  against  fire,  as  to  the  general  rules  of  construc- 
tion ;  *  respecting  non-compliance  at  the  time  for  the  risk  to  be- 
gin ;  ^  specifying  buildings  within  a  certain  distance  ;  ^  encum- 
brances, and  statement  of  title  ; ''  the  sale  of  the  subject ;  ^  other 
insurance  ;  ^  storing  particular  articles ;  ^^  giving  notice  of  a  loss  ;  ^^ 
false  affidavits. ^2 

So  the  jurisprudence  on  life  policies  supplies  similar  illustra- 
tions :  as  to  what  is  good  health  ;  ^^  death  by  insanity  ;  ^^  usual 
medical  attendant ;  ^^  payment  of  premium  ;  ^^  naming  medical 
attendant ;  ^^  spitting  of  blood  ;  ^^  temperate  habits  ;  ^^  having  fits.^^ 


1  Taylor  v.  Lowell,  3  Mass.  R.  331. 

2  1  Marine  Ins.  584. 

3  Relative  to  forfeiture  of  written 
contracts  by  non-compliance  with  con- 
ditions, in  case  of  leases  mostly,  but 
having  analogy  to  express  warranties, 
see  Sanders  v.  Pope,  12  Ves.  281; 
Hill  V.  Barclay,  18  Ves.  63 ;  Lloyd  v. 
Collett,  Br.  Ch.  Cas.  469,  and  Belt's 
note;  Reynolds  v.  Pitt,  19  Ves.  134  ; 
White  V.  Warren,  2  Mer.  459;  Rolfe 
V.  Harris,  2  Price,  26  ;  Baxter  v.  Lans- 
ing, 7  Paige,  350  ;  2  Story's  Eq.  Jur., 
s.  1315,  1320,  et  seq.;  Errington  v. 
Aynesley,  2  Br.  Ch.  Cas.  341 ;  Taylor 


V.  Popham,  1  id.  168 ;  Eaton  v.  Lyon, 
3  Ves.  690;  Skinner  v.  Dayton,  2 
Johns.  Ch.  R.  526  ;  Arnsby  v.  Wood- 
ward, 6  B.  &  C.  519 ;  Bouser  v.  Colby, 
1  Hare's  Ch.  R.  109  ;  Harrington  v. 
Wheeler,  4  Ves.  686  ;  Bracebridge  v. 
Buckley,  2  Price,  200. 

4  Infra,  No.  866,  872,  873,  874,  875, 
878. 

5  Infra,  No.  870 ;  6  No.  872a. ;  7  No. 


874  a. ;  8  No.  880;  9  No.  881 
883;  11  No.  886  ;  12  No.  888 
894  ;  14  No.  895  ;  15  No.  898 
89  7;  17  No.  898;  '8  No.  899 
900;  20  No.  901. 


10  No. 
13  No. 
16  No. 

19  No. 


436  EXPRESS    WARRANTIES,    STIPULATIONS,   ETC.       [CIIAP.  IX. 


SECTION    III.       WARRANTY    OF    THE    TIME    OF    SAILING. 

772.  Under  a  warranty  that  the  vessel  sailed,  or  will  sail,  on  or 
before  a  certain  day,  a  question  arises  in  regard  to  what  constitutes 
"  a  sailing  "  on  the  voyage. 

A  vessel  has  '^ sailed"  the  moment  she  is  unmoored  and  got 
under  loay,  in  complete  prejjaration  for  the  voyage,  with  the 
purpose  of  proceeding  to  sea,  without  further  delay  at  the  port  of 
departure. 

Lord  Mansfield  said  :  "  To  constitute  a  sailing  under  this  war- 
ranty, the  vessel  at  the  time  of  sailing  must  be,  in  the  contempla- 
tion of  the  captain,  at  absolute  and  entire  liberty  to  proceed  to  her 
port  of  delivery  in  a  mathematical  line,  if  it  were  possible  ;"i  re- 
ferring probably  to  her  being  ready,  so  far  as  her  preparations  and 
equipments  for  the  voyage  are  concerned. 

A  ship  insured  "at  and  from  Jamaica  to  London,  free  from 
capture  and  restraints,  and  detainments  of  kings,  princes,  and  peo- 
ple," and  "warranted  to  sail  on  or  before  the  26th  of  July,  1776," 
was  ready  to  sail,  and  would  have  sailed,  on  the  25th  of  that 
month,  had  she  not  been  detained  by  an  embargo  laid  by  the 
order  of  the  Governor  of  Jamaica,  which  was  not  raised  until  after 
the  time  when  the  ship  was  warranted  to  sail.  The  warranty  was 
held  to  be  not  complied  with.^  In  this  case  the  delay  was  by  a 
peril  expressly  excepted,  which  distinguishes  it  from  some  of  those 
subsequently  referred  to. 

A  warranty  to  sail  on  or  before  a  particular  day  is  not  complied 
with  by  leaving  the  harbor  on  that  day,  without  having  a  sufficient 
crew  on  board,  although  the  remainder  of  the  crew  are  engaged, 
and  ready  to  come  on  board.'*' 

The  rules  of  a  mutual  insurance  association,  which  were  part  of 
the  policy,  defined  "  the  time  of  clearing  at  the  custom-house  to 


1  Thiillusson   V.   Staples,   Douglas,        3  Grabam  v.   Barras,  3   N.  &  M. 
351  n.  125. 

2  Ilorc  V.  Whitinoro,  Cowp.  784. 


SECT.  III.]  WARRANTY   OF   THE   TIME    OF   SAILING.  437 

be  the  time  of  sailing,  provided  the  ship  is  then  ready  for  sea," 
and  the  cargo  and  freight  of  a  vessel  were  insured  on  time,  war- 
ranted not  to  sail  from  Sligo,  in  Ireland,  for  British  North  America, 
after  the  1st  of  September.  The  vessel  had  cleared  at  the  custom- 
house on  the  29lh  of  August,  and  on  the  30th  dropped  down  the 
river  with  ten  to  fifteen  tons  of  ballast,  and  anchored  inside  of  the 
bar  at  the  mouth  of  the  river,  and  remained  at  her  moorings  there 
on  the  31st,  the  weather  being  unfavorable.  On  the  1st  of  Sep- 
tember she  attempted  to  cross  the  bar,  attended  by  boats  with 
thirty-five  tons  of  additional  ballast,  to  be  put  on  board  after  pass- 
ing the  bar,  which  the  vessel  crossed  between  eight  and  nine 
o'clock  in  the  morning,  being  in  time  to  put  the  ballast  on  board 
and  sail  on  that  day ;  but  the  vessel  having  struck  twice  in  cross- 
ing the  bar,  the  master,  deeming  it  not  prudent  to  proceed  without 
examining  her  bottom,  put  into  a  near  harbor,  and  having  found 
her  not  to  be  injured,  put  to  sea  on  the  4th.  Lord  Tenterden, 
C.  J. :  "  If  a  ship  quits  her  moorings  and  removes  only  a  short 
distance,  being  perfectly  ready  to  proceed  on  her  voyage,  and  is 
by  some  subsequent  occurrence  detained,  that  is  a  sailing  ;  but  it 
is  otherwise  if,  at  the  time  when  she  quits  her  moorings  and  hoists 
her  sails,  she  is  not  in  a  condition  for  completing  her  sea-voyage." 
It  was  accordingly  held  not  to  be  a  compliance  with  the  war- 
ranty.^ 

773.  Whether,  if  a  vessel  is  warranted  to  sail  on  or  before  a 
day  named,  and  is  completely  ready  to  sail  on  that  day,  hut  is 
prevented  from  departing  hy  stress  of  iveather  or  other  extraordi- 
nary inevitable  peril  or  restraint,  not  excepted  in  the  policy,  and 
afterwards  sails  without  unnecessary  delay,  the  ivarranty  is  com- 
plied with  1 

This  question  is  not  free  of  difficulty,  and  the  decisions  upon  it 
do  not  altogether  harmonize. 

A  vessel  insured  from  Demarara  was  "  warranted  to  sail  on  or 
before  the  first  of  August. "  She  sailed  down  the  river  about  two 
miles  on  that  day,  ready  to  proceed  to  sea  ;  but,  the  tide  being 
low,  by  advice  of  the  pilot,  anchored  inside  of  the  shoal  at  the 

1  Pittegrew  v.  Pringle,  3  B.  &  Ad.  514. 
37* 


438  EXPRESS   WARRANTIES,   STIPULATIONS,   ETC.      [CHAP.  IX. 

mouth  of  the  river,  and  did  not  proceed  until  the  3d.     Lord  Ten- 
terden  and  his  associates  held  this  to  be  a  sailing  on  the  Ist.^ 

Under  a  warranty  to  sail  from  Jamaica  for  London  on  or  before 
the  1st  of  August,  with  a  stipulation  for  return  of  premium  for 
convoy,  the  ship  proceeded,  on  the  26th  of  July,  out  of  the  course 
to  London,  for  Bluefields,  in  the  same  island,  to  join  convoy  there  ; 
and,  the  convoy  being  detained  by  an  embargo,  did  not  proceed 
on  the  vova^e  with  the  vessel  insured  until  after  the  1st  of  August. 
Lord  Mans6eld,  with  the  other  judges  of  the  King's  Bench,  held 
this  to  be  a  compliance  with  the  warranty.  He  said  it  was  a  sail- 
ing for  London  by  way  of  Bluefields.^ 

Under  a  similar  warranty  for  the  same  voyage,  the  vessel  sailed 
on  the  1st  from  Savannah  la  Mer,  for  Bluefields,  for  convoy,  and 
there  waited  until  the  9th  of  August  for  the  sailing  of  the  convoy, 
which  did  not  arrive  there  until  that  day,  having  been  detained 
by  an  embargo.  The  master  had  expected  to  find  the  convoy 
ready  to  sail  on  his  arrival  at  Bluefields.  This  was  held  by  the 
same  court  to  be  a  sailing  from  Jamaica  on  the  1st,  Willes,  J., 
dissenting.^ 

A  French  ship  '-warranted  to  sail  from  Guadaloupe  on  or  be- 
fore the  31  St  of  December,"  for  Havre,  sailed  from  Point  a  Pitre, 
in  that  island,  ready  to  pursue  her  voyage  in  October,  with  orders 
and  an  intention,  however,  to  stop  at  Basseterre,  in  the  same  island, 
and  in  the  course  of  the  voyage  to  receive  despatches,  which  the 
master  expected  to  be  ready.  The  vessel  was  detained  there  until 
the  10th  of  January,  when  it  sailed  with  convoy,  and  was  subse- 
quently captured.  Lord  IMansfield,  and  the  other  judges  of  the 
King's  Bench,  held  the  sailing  from  Point  a  Pitre  to  be  a  compli- 
ance with  the  warranty,  on  the  ground  that  the  master  did  not  ex- 
pect to  be  detained  at  Basseterre.*^ 

This  liberal  construction  of  the  warranty  in  question  is  in  con- 


1  Lang  V.  Anderson,  3  B.  &  C.  495  ;  3  Earle  v.  Harris,  Doug.  357. 

S.  C,  5  D.  &  R.  393  i  S.  C,  1  C.  &  P.  4  Thellusson   v.  Fergusson,  Doug. 

171.  34G,  and  same  Plff.  i".  Staples,  Doug. 

^  Bond  V.  Nutt,  Cowp.  COl ;  Doug.  351,  n. 
344. 


SECT.  III.]  WARRANTY    OF   THE   TIME    OF   SAILING.  439 

trast  with  llie  very  literal  one  adopted  by  Lord  Tenterden,  in  his 
instruction  to  the  jury  in  a  case  where  the  master,  being  ready  for 
the  voyage,  took  up  one  of  the  two  anchors  by  which  the  vessel 
was  moored,  and  some  of  her  sails  were  set,  and  she  had  been 
hauled  about  thirty  fathoms  of  the  length  of  the  other  cable  on  the 
9th,  being  the  day  warranted,  when,  observing  a  heavy  swell  set- 
ting into  the  harbor,  he  deemed  it  dangerous  to  proceed,  and 
delayed  until  the  11th.  Lord  Tenterden  ruled  this  not  to  be  a 
sailing  on  the  9th. ^ 

Under  a  warranty  in  a  time  policy  on  The  Cyclops,  to  sail  on 
a  voyage  to  America  on  or  before  the  1 5th  of  August,  preparations 
were  hastened,  and  the  vessel  was  got  ready  to  proceed  on  the 
voyage,  and  when  the  tide  served,  in  the  afternoon  of  that  day, 
was  hauled  out  of  the  dry  dock  in  Dublin  into  the  river  Liffey,  and 
down  the  river  about  half  a  mile,  ready  to  proceed,  the  master 
knowing  he  could  not  then  proceed  on  the  voyage,  being  pre- 
vented by  a  strong  wind  blowing  up  the  river,  so  that  the  sails 
could  not  be  hoisted.  On  the  next  day  she  was  warped  further 
down,  as  far  as  she  could  be  taken  by  warping,  and  sailed  on  the 
day  following,  the  wind  having  become  favorable.  The  claim  for 
a  loss  came  before  the  Court  of  Exchequer,  where  Lord  Lynd- 
hurst,  C.  B.,  said,  that,  if  the  master  proceeded  down  the  river 
"with  the  bona  fide  intention  of  placing  the  vessel  in  a  more  favor- 
able situation  in  regard  to  the  prosecution  of  the  voyage,"  it  was 
a  compliance  with  the  warranty  ;  but  not  so,  "  if  merely  to  com- 
ply with  the  letter  of  the  warranty."  ^  And  on  the  case,  after  a 
new  trial,  coming  on  error  before  the  Exchequer  Chamber,  Lord 
Denman  said:  "Considering  that  there  was  no  distinct  point  of 
commencement  pointed  out  in  this  policy,  we  think  that  the  vessel 
was  in  the  prosecution  of  the  voyage"  on  the  I5th,  the  jury  having 
found,  on  the  new  trial,  that  she  was  warped  down  the  river  to  be 
in  a  better  position  for  the  prosecution  of  the  voyage,  according  to 
the  distinction  made  by  Lord  Lyndhurst.^ 

1  Nelson  v.  Salvador,  1  Mood.  &  M.  3  s.  C,  1  C.  M.  &  Rose.  800  ;  S.  C, 
309;  S.  C,  Dans.  &  LI.  219.  5  Tyrw.  496  ;  and  see  Pittegrew  v. 

2  Cockran  v.  Fislier,  2  Cr.  &  Mees.  Pringle,  3  B.  &  Ad.  514,  stated  supra, 
681 ;  S.  C,  4  Tyrw.  424.  No.  772. 


440  EXPKESS   WARRANTIES,    STIPULATIONS,   ETC.      [CIIAP.  IX. 

The  preceding  cases  will  not,  I  think,  all  concur  in  any  one 
general  proposition,  and  that  which  seems  to  come  nearest  to 
reconciling  them  with  each  other  is,  that. 

If  the  risk  has  previously  commenced  under  the  policy,  and  the 
vessel  is  ivholly  ready  to  depart  hy  the  time  warranted,  so  far  as 
the  fitting  out,  loading,  manning,  and  clearing  out,  and  all  other 
preparations  and  preliminaries  to  the  actual  departure,  depending 
upon  the  assured,  are  fully  completed,  and  nothing  hinders  her 
sailing  but  some  peril  insured  against  by  the  policy,  or  which,  if  it 
had  occurred  at  any  subsequent  stage  of  the  voyage  would  not  have 
discharged  the  underwriters,  the  ivarranty  to  sail  is  complied  ivith, 
unless  a  different  construction  is  expressly  indicated  by  the  policy. 
Some  of  the  preceding  cases  come  distinctly  within  this  proposi- 
tion. 

But  if  the  risk  is  to  commence  only  at  the  sailing  of  the  ship, 
and  the  assured  is  responsible  for,  and  the  underwriter  free  from, 
all  preceding  risks,  perils,  and  losses,  then  the  warranty  is  not 
complied  ivith  unless  she  actually  sails  within  the  time  war- 
ranted. 

774.  A  warranty  not  to  sail  from  a  certain  coast,  district, 
island,  or  place  before  a  certain  time,  is  not  violated  hy  previously 
sailing  from  one  piort  to  another  of  the  coast  or  district  specified 
before  the  time  : 

As  in  case  of  warranty  not  to  sail  from  Jamaica,  and,  prior  to 
the  day  named,  sailing  to  a  port  to  join  convoy.^ 

775.  The  warranty  to  sail  from  a  coast  or  district  on  or  be- 
fore a  certain  day,  requires  sailing  from  the  last  port  of  loading, 
within  the  time.^ 

But  insurance  from  M.,  with  liberty  to  touch  at  G.,  war- 
ranted to  sail  after  the  12th,  was  ruled  by  Mr.  Justice  Buller 
not  to  have  been  complied  with  by  sailing  from  the  latter  after 
that  day.3 

776.  Where  the  insurance  is  from  an  inland  port,  ivith  loar- 


•  Cruikshaiik  v.  Janscn,  2  Taunt.         ~  Wright  v.  Sliifl'ncr,  11  East,  515; 
301.     See   Vezian   r.   Grant,   Tark,     S.  C,  2  Camp.  24  7. 
485.  ^  Vezian  v.  Grant,  Park,  485. 


SECT.  III.]  WARRANTY    OF   THE   TIME    OF   SAILING.  441 

ranty  to  sail  hy  a  certain  time,  the  vessel  must  liave  its  cargo  and 
crew  on  board,  and  its  clearance,  and  be  ready  to  proceed  on  the 
voyage  without  further  delay  at  any  places  that  can  be  considered 
parts  or  branches  of,  or  appendages  to,  the  port  named,  and 
auxiliary  to  its  navigation,  though  this  may  require  dropping 
down  a  river,  or  navigating  inland  waters,  to  a  considerable  dis- 
tance. 

It   lias  been   maintained,  that  the   port  of  London  extends  to 

Gravesend,  and  that  a  vessel  has  not  sailed  thence  until  her  de- 
parture from  Gravesend,  since  vessels  obtain  their  final  clearances 
at  Gravesend,  and  goods  are  not  entitled  to  debenture  until  after 
the  cocket,  which  is  the  last  paper  of  clearance,  is  obtained  at  that 
place. 1  Thus  where,  on  a  license  for  the  exportation  of  goods 
from  the  port  of  London  before  the  10th,  the  vessel  cleared  at 
London  on  the  9th,  and  at  Gravesend  on  the  12th,  the  court  held 
that  this  was  not  an  exportation  within  the  terms  of  the  license.^ 

A  vessel  was  insured  from  Savannah,  and  warranted  to  have 
"sailed  early  in  October."  She  had  cleared  at  the  custom-house 
on  the  15th  of  September,  and  dropped  down  the  river  about  three 
miles  to  Five  Fathom  Hole,  and  afterwards  about  eleven  miles  to 
Cockspur,  at  both  which  places  vessels  of  heavy  burden  finish  their 
loading.  She  remained  for  some  time  at  Cockspur,  waiting  for 
the  recovery  of  the  captain,  who  was  sick  on  shore,  and  she  finally 
sailed  from  that  place  on  the  1st  of  October.  Chief  Justice  Kent 
said:  "The  voyage  did  not  commence  till  the  vessel  left  Cock- 
spur. She  left  the  port  of  Savannah  for  a  temporary  purpose, 
distinct  from  the  object  of  the  voyage."  ^ 

A  policy  was  made  on  goods  and  freight,  at  and  from  Pont- 
Neuf,  on  the  river  St.  Lawrence,  to  London,  with  a  warranty  "  to 
sail  on  or  before  the  28th  of  October."  Pont-Neuf  is  about  thirty 
miles  above  Quebec.     It  has  no  custom-house,  and  vessels  going 


1  Park,  497.  3  Dennis  v.  Ludlow,  2  Caines,  R. 

2  Williams  v.  Marshall,  2  Marsh.  R.     1 1 1- 
92;  1  Moore,  162;  6  Taunt.  390;  7 
Taunt.  4G8. 


442  EXPRESS    WARRANTIES,    STIPULATIONS,   ETC.       [CIIAP.  IX. 

to  sea  from  that  place  clear  at  Quebec.  On  the  26th  of  October 
the  vessel,  under  the  command  of  the  mate,  with  a  sufficient  crew 
for  the  river  navigation,  but  not  for  the  voyage,  dropped  down 
from  Pont-Neuf,  and  reached  Quebec  on  the  evening  of  the  28lh. 
The  captain  had  gone  down  to  Quebec  before,  to  get  his  papers 
at  the  custom-house.  The  crew  was  completed  at  Quebec,  and 
on  the  29lh  the  captain  obtained  his  clearance.  He  sailed  on  the 
30th,  not  having  been  able  to  obtain  a  pilot  on  the  preceding  day. 
Lord  Ellenborough:  "The  ship's  dropping  down  to  Quebec,  with- 
out her  complement  of  men,  showed  that  that  was  only  prepara- 
tory to  the  voyage.  'Warranty  to  sail  on  such  a  day,'  must  mean 
when  the  ship  could  get  her  clearances,  and  sail  equipped  for  the 
voyage."  ^ 

777.  A  warranty  to  ''depart'^  from  a  port,  means  to  leave  it, 
not  merely  to  get  under  way  tvithout  leaving  it. 

Insurance  was  made  on  a  ship  at  and  from  Memel  to  England, 
"warranted  to  depart  on  or  before  the  15th."  The  vessel,  with 
her  clearances  and  cargo  on  board,  and  being  completely  ready  for 
the  voyage,  hove  up  her  anchor  and  got  under  way  on  the  9th, 
with  the  intention  of  proceeding.  Before  she  had  been  half  an 
hour  under  way,  the  weather  changed,  and  she  was  obliged  to 
come  to  anchor  at  the  HafF,  or  river  mouth,  within  the  distance  of 
half  a  mile  from  the  sea,  where  she  lay,  with  above  thirty  other 
ships,  until  the  first  opportunity  for  sailing,  which  was  on  the  21st. 
Gibbs,  C.  J. :  "If  this  warranty  had  been  that  the  vessel  should  sail 
on  or  before  the  15th,  I  should  have  thought  that  she  had  sailed. 
The  warranty  to  sail  means  that  she  shall  commence  her  voyage. 
The  decisions  hitherto  have  been,  that  when  a  vessel  got  under 
way  the  warranty  was  complied  with.  But  I  think  the  word 
'depart'  must  mean  a  departure  from  the  port  of  Memel." - 

778.  Insurance  from  a  certain  port  "  ivarr anted  in  port "  on  a 
certain  day,  means  in  the  port  at  which  the  risk  commences. 


1  Risdalc  r.  Newnham,  3  M.  &  S.     Marsh.  R.  576;  S.  C,  6  Taunt.  241  ; 
456..  8  M.  &  S.  461 ;  4  Camp.  84. 

2  Moir  V.  Ro^al  Excli.  Ass.  Co.,  1 


SECT.  IV.]  WARRANTY  OF  CONVOY,  443 

It  was  so  ruled  by  Lord  Tenterden  under  a  policy  on  a  ship  at 
and  from  Hamburg,  the  ship  being  on  the  day  named  at  Cux- 
haven,  in  the  territory  of  Hamburg,  ninety  miles  below,  and  not 
considered  by  Lord  Tenterden  to  be  a  part  of  that  port.  No 
clearance  is  necessary  there. ^ 

779.  Insurance  from  a  port  ^^  where  a  vessel  now  is,"  means 
that  she  is  there  at  the  date  of  the  insurance. 

It  was  so  held  by  McCoun,  Vice-Chancellor,  in  New  York,  on  a 
bill  to  enforce  an  agreement  to  insure  the  profits  of  a  cargo  at  and 
from  Gibraltar,  which  had,  in  fact,  together  with  the  vessel,  been 
there  destroyed  by  fire  before  the  date  of  agreement.  The  appli- 
cant insisted  on  his  right  to  a  policy,  "lost  or  not  lost.""-^ 

SECTION    IV.       WARRANTY    OF    CONVOY. 

780.  Another  express  warranty  that  frequently  appears  in  the 
jurisprudence  on  English  policies  is  that  of  convoy.  There  are 
divers  acts  of  Parliament  making  provisions  on  this  subject.  In 
the  United  States  no  similar  standing  regulation  has  to  my  know- 
ledge hitherto  been  made,  and  as  convoy  has  rarely  been  provided 
by  government,  and  has  been  in  very  little  use,  this  warranty  does 
not  appear  in  American  policies,  and  should  it  hereafter  be  intro- 
duced, it  will  probably  be  under  laws  and  usages  different  from 
those  of  Great  Britain. 

This  warranty  is  complied  with  by  taking  such  convoy  as  is 
provided  by  the  government  for  vessels  bound  on  the  voyage 
insured,  and,  if  convoy  is  usually  furnished  for  only  a  part  of  the 
voyage,  it  is  no  breach  of  the  warranty  to  perforin  the  remainder 
without  any  convoy.^ 


1  Colby  V.  Hunter,  3  C.  &  P.  7 ;  S.  bert  v.  Pigou,  3  Doug.  224 ;  Gordon 
C,  1  Mood.  &  Malk.  81;  and  see  Key-  v.  Morley,  2  Str.  1265  ;  Lethulier's 
ser  V.  Scott,  4  Taunt.  6G0,  and  Dal-  case,  2  Salk.  443 ;  D'Eguino  v.  Be- 
gleish  V.  Brooks,  15  East,  295.  wicke,  2  H.  Bl.  551 ;  Audley  v.  DufF, 

2  Callaghan  v.  Atlantic  Ins.  Co.,  1  2  B.  &  P.  Ill;  Everard  v.  Hollings- 
Edw.  Ch.  R.  64.  worth,  2  B.  &  P.  Ill,  n. ;  Campbell  v. 

3  Bond  V.  Gonsales,  2  Salk.  445;  Bourdieu,  2  Str.  1265;  De  Garey  u. 
Smith  V.  Readshaw,  Park,  510 ;  Hib-  Clagget,  Park,  511 ;  Warwick  v.  Scott, 


444  EXPRESS   WARRANTIES,    STIPULATIONS,   ETC.      [CUAP.  IX. 

781.  The  vessel  must  not  only  sail  with  the  convoy,^  but  the 
captain  must  also,  either  before,  or  at  the  time  of  sailing,  talce  sail- 
ing orders,  or  directions  as  to  keeping  with  the  convoy,  obeying 
signals,  and  the  like,  from  the  commander  of  the  convoy,  except, 
perhaps,  where  he  is  unavoidably  prevented,  without  any  fault  on 
his  part,  from  receiving  such  orders,  in  which  case  he  must  take 
the  earliest  opportunity  of  obtaining  them.^ 

782.  If  the  vessel  cannot  sail  fast  enough  to  Tieep  with  the  con- 
voy, or  is  parted  by  a  storm  or  other  inevitable  accident,  it  is  not 
a  breach  of  the  warranty.^ 


SECTION    V.       WARRANTY    OF    NEUTRAL    PROPERTY,    ITS     FORM,    IM- 
PORT,   AND    CONSTRUCTION. OWNERSHIP. 

783.  A  ivarranty  that  the  ship  or  goods  are  neutral,  or  neutral 
property,  is  an  engagement  on  the  part  of  the  assured,  that  it  is 
owned  by  persons  resident  in  a  country  at  peace  when  the  risk 
begins,  and  who  have  the  commercial  character  of  subjects  of  such 
country,  and  that  it  shall  be  accompanied  with  such  documents, 
and  shall  be  so  managed  and  conducted  by  the  assured  and  their 
agents,  as  to  be  entitled,  as  far  as  depends  on  them,  to  all  the 
protection  and  privileges  of  property  belonging  to  the  subjects  of 
such  country. 

And  so  a  ivarranty  that  the  property  is  Dutch  or  American,  or 
of  any  particular  national  character,  is  an  engagement  that  it  is 
owned  by  persons  having  the  commercial  character  of  Dutchmen 
or  Americans,  or  of  the  subjects  of  such  other  nation,  and  that  it 
shall  be  so  documented,  and  so  conducted  by  the  assured  and 
their  agents,  as  not  to  forfeit,  as  far  as  depends  on  them,  any  of 


4  Camp.  C2;  Lilly  v.  Ewer,  1  Doug.  Marsh.  R.  37G  ;  Verdon  (cited  Vee- 

72 ;  Morricc  v.  Dillon,  2  Selw.  N.  P.  don  in  Abb.  on  Ship.  p.  234)  v.  Wil- 

992.  mot,  3  Doug.  74. 

>  Taylor  v.  Woodncss,  Tark,  510.  3  Manning  v.  Gist,  Marshall,  3G7; 

2  Webb  r.  Thompson,  1  B.  &  P.  5  ;  Simond  v.  BoydcU,  Doug.  255 ;  Jcf- 

Victorin  v.  Cleeve,  2  Str.  1250;  An-  ferics  v.  Lcgcndra,  4  Mod.  58  ;  2  Salk. 

dcrson  v.  Pitcher,  2  B.  &  P.  1G4;  3  443;  Laing  v.  Glover,  5  Taunt.  49. 
E.sp.  124;  Waltham  v.  Thompson,  1 


SECT,  v.]  NEUTRAL  PROPERTY.  —  OWNERSHIP.  445 

the  advantages  to  which  the  property  of  the  subjects  of  such  nation 
is  entitled. 

If  the  property  insured  is  warranted  to  be  American,  at  a  time 
when  the  United  States  are  at  peace,  it  is  precisely  the  sanie  as  a 
warranty  of  neutrality,  and  these  two  forms  of  warranting  are  used 
indifferently  for  the  same  purpose. 

784.  This  warranty  is,  that  the  subject  is  neutral  at  the  com- 
mencement of  the  risk,  and  that  it  shall  continue  to  be  neutral  so 
far  as  depends  upon  the  assured,  or  he  is  responsible. 

If  a  declaration  of  war  changes  the  character  of  the  subject  from 
neutral  to  belligerent,  after  the  policy  is  made,  the  warranty  is  not 
thereby  forfeited.' 

785.  A  statement  of  the  fact  that  the  property  is  neutral, 
whether  incidentally  or  directly,  whether  as  a  part  of  the  descrip- 
tion of  the  property  or  in  the  form  of  warranting,  will  equally  con- 
stitute a  warranty.^ 

786.  So  the  ivarranty  of  a  fact  necessarily  implying  the  neu- 
tral or  national  character  of  the  property,  will  have  the  same 
construction  as  a  formal  and  direct  warranty  to  this  effect.  Where 
a  policy  effected  in  the  United  States  contained  the  following 
note  :  "  N.  B.  The  vessel  sails  under  a  sea-letter ; "  it  was  held 
to  be  a  warranty  of  American  property.^ 

787.  It  has  already  appeared^  that  the  national  character  of 
any  person,  for  all  commercial  purposes,  depends  upon  his  domi- 
cile, and  be  is  taken  to  have  the  commercial  character  of  the 
nation  where  he'  has  his  residence.^  What  has  been  said  in  regard 
to  national  character  is  applicable  to  the  present  subject,  but  need 
not  be  repeated.  If  property  be  insured  as  belonging  to  the  sub- 
jects of  any  particular  country,  as  Hamburghers,  which  is  owned 
by  the  subjects  of  another,  as  Frenchmen,*'  or  if  it  be  warranted 
to  belong  to  neutrals  when  it  is  owned  by  belligerents,  the  insurers 
are  not  bound  by  their  subscription. 


1  Eden  r.  Parkinson,  Doug.  732;  ^  SIeghtu.Rhinelander,lJohns.l92. 
Tyson  v.  Gurney,  3  T.  R.  4  77;  Sa-  i  Sujira,  c.  2,  s.  3. 

loucci  V.  Johnson,  Park,  8th  ed.,  716.  5  ibid. 

2  See  the  cases  passim.  6  Skin.  327. 
VOL.  I.                             38 


446  EXPRESS   WARRANTIES,   STIPULATIONS,   ETC.     [CHAP.  IX. 

788.  Belligerent  ownership  of  a  part  of  the  property  insured, 
at  the  outset,  luill  defeat  the  policy  as  to  the  whole} 

789.  So  far  as  ownership  is  concerned,  the  warranty  of  neu- 
trality is  applicable  only  to  the  interest  insured. 

Where  the  assured,  being  neutrals,  were  part-owners  of  goods, 
the  other  part-owner  being  a  belhgerent,  and  the  poHcy  was  in- 
tended to  cover  only  the  interest  of  the  neutral  part-owners,  Chief 
Justice  Marshall  said:  "The  assured  are  not  understood  to  war- 
rant that  the  whole  cargo  is  neutral,  but  that  the  interest  insured 
is  neutral."^ 

790.  Property  held  in  tinist  by  a  neutral  as  collateral  security 
for  a  debt  due  to  a  belligerent,  or  to  be  used  and  managed  for  his 
belief  t,  has  a  belligerent  character. 

A  vessel  warranted  American  had  been  conveyed  by  John 
Bazing,  an  American,  to  Murray  and  Hart,  Americans  also,  by  a 
bill  of  sale  absolute  in  its  terms,  but  in  fact  in  trust  for  Nathaniel 
Bailey,  of  Jamaica,  a  British  subject  and  belligerent,  as  security 
for  a  debt  due  to  him  from  Bazing  ;  it  was  held  that  the  warranty 
was  not  complied  with.  Mr.  Justice  RadclifF  said  :  "  A  warranty 
of  neutrality  requires  that  the  property  should  be  wholly  neutral. 
If  one  of  the  belligerents  had  an  interest,  whether  partial  or  entire, 
the  risk  was  thereby  increased,  and  the  warranty  not  complied 
with."  3 

Where  insurance  was  on  cargo,  freight,  and  profits,  warranted 
"  American  property,"  the  warranty  was  held  to  apply  to  the 
freight  and   profits,  as  well  as  to  the  merchandise.^ 

791.  Goods  which  a  neutral  has,  during  ivar,  agreed  to  sell  to 
a  belligerent,  and  deliver  in  the  country  of  the  latter,  have  been 
held  to  be  belligerent  property  xvhih  in  transit ;  and  if  so,  they 
would  not  answer  to  the  warranty  of  neutral  property.^     The  rea- 

>  Calbreath  r.  Grade,  1  Wash.  C.  C  ^  Bayard  v.  Mass.  Fire  &  Mar.  Ins. 

R.  219  ;  and  vide  Goold  i-.  United  Ins.  Co.,  4  Mason,  256  ;  and  see  The  Vigi- 

Co.,  2  Caincs,  73,  infra,  Xo.  798.  lantia,  1  Cbr.  Rob.  1 ;  The  Embdcn, 

■2  Livingston  r.  Maryland  Ins.  Co.,  1  id.  16  ;    The  Vrow  Hermina,  1  id. 

6  Cranch,  274.  163;  The  Endraught,  19. 

3  Murray  f.  United  Ins.  Co.,  2  Johns.  5  Xhe    Vrow   Margaretha,   1   Chr. 

1 08.  Rob.  336  ;  The  Atlas,  3  id.  299  ;  The 


SECT,  v.]  NEUTRAL   PROPERTY.  —  OWNERSHIP.  447 

son  given  is,  that  the  wiiole  commerce  of  the  belligerents,  sustained 
by  their  contracts,  might  thus  be  carried  on  through  neutrals  ;  and 
the  stronger  belligerent  naval  power  would  thus  be  deprived  of 
part  of  the  advantage  of  its  naval  superiority.  On  the  other  hand, 
the  neutral  objects  to  being  deprived  of  a  kind  of  trade  which  is  not 
of  a  character  recognized  by  the  law  of  nations  to  be  contraband 
of  war.      There  are,  accordingly,  not  wanting  contrary  decisions? 

The  discriminating  circumstance  is,  that  the  price  of  the  goods 
is  at  the  risk  of  the  vendee  from  the  time  of  making  the  contract ; 
for  it  is  not  a  matter  of  doubt  that  the  neutral  may  take  his  own 
goods  to  the  market  of  either  belligerent  for  sale  at  his  own  risk 
as  to  the  state  of  the  markets,  as  well  as  in  all  other  respects. 
This  seems  to  be  a  narrow  basis  for  the  doctrine,  of  which  it  is  not 
unreasonable  to  say,  at  least,  that  it  ought  to  he  Limited  to  cases 
where  it  appears  that  the  contract  is  made  for  the  mere  purjpose  of 
screening  the  goods  from  capture,  and  this  limitation  allows  a  large 
belligerent  right. 

Sir  William  Scott  even  put  this  case  upon  a  level  with  that  of 
disguising  belligerent  goods  as  neutral,  and  not  only  condemned  the 
goods  shipped  under  such  a  contract,  but  also  the  other  goods  of 
the  same  shipper.^  If  it  be  conceded  that  such  adjudications  are 
founded  in  the  law  of  nations,  then  the  shipper  thus  forfeits  his 
warranty  of  neutrality  of  such  other  goods. 

792.  Goods  shijjped  by  a  neutral  under  a  contract  ivith  a  belli- 
gerent during  peace,  but  in  contemplation  of  war,  to  be  delivered 
at  his  risk  to  the  vendee  in  the  country  of  the  latter,  are  put  upon 
the  same  footing  as  in  case  of  such  contract  made  during  war.^ 

793.  Where  an  agreement  is  made  during  peace,  and  without 


Sally,  3  Id.  300,  n.;  The  Anna  Catha-  2  The  Staadt  Embden,  1  Chr.  Rob. 

rina,  4  id.  107  ;  The  Jan  Frederick,  26  ;  The  Jonge  Tobias,  1  id.  329  ;  The 

5  id.  128;  1  Kent's  Com.  86,  5th  ed.;  Sarah  Christina,  1  id.  237  ;  The  Rin- 

The  Ann  Green,  1  Gall.  274;  The  gende  Jacob,  1  id.  89;  The  Edward, 

Francis,  1  id.  450.    See  1  Duer,  Mar.  4  id.  68 ;  The  Ranger,  6  id.  125  ;  The 

Ins.  423,  428.  Mercurius,  1  id.  288. 

1  See  Ludlow  v.  Bowne,  1  Johns.  R.  3  The  Packet  de  Bilboa,  2  Chr.  Rob. 

1 ;  De  Wolf  v.  N.  Y.  Firemens'  Ins.  133 ;  The  Anna  Catharina,  2  id.  112. 
Co.,  20  id.  214;  S.  C,  2  Cowen,  56. 


448  EXPRESS   WARRANTIES,   STIPULATIONS,   ETC.      [CIIAP.  IX. 

any  contemplation  of  war,  for  the  sale  of  goods,  to  be  delivered 
by  the  vendor  residing  in  one  country  to  a  foreign  vendee,  resid- 
ing in  another,  and  before  shipment  of  the  goods  war  breaks  out 
between  the  country  of  the  vendee  and  a  third,  whereby  the  ship- 
ment would  be  contraband,  the  shipment  after  notice  of  the  war 
will  not  answer  to  a  tvarranty  of  neutrality.^ 

794.  Goods  shipped  by  a  belligerent  in  compliance  with  an 
order,  or  without  an  order,  to  be  delivered  to  a  neutral  only  on 
conditions  and  contingencies,  other  than  the  general  right  to  stop 
in  transitu,  retain  their  belligerent  character  during  the  transit, 
and  do  not  accordingly  correspond  to  a  loarranty  of  neutral  oivner- 
ship.^ 

795.  But  tvhere  goods  are  shipped  by  a  belligerent  condition- 
ally to  become  those  of  a  neutral,  and  the  latter  complies  with  the 
condition  before  a  capture,  they  thereby  become  from  that  time 
neutral  property. ^ 

796.  If  a  shipper  has  despatched  goods  during  peace,  and 
while  they  are  in  transit,  by  the  occurrence  of  war,  he  becomes  a 
belligerent,  he  cannot  screen  them  from  capture  by  assigning  them 
to  a  neutral  for  that  purpose,  and  accordingly  they  will  not  thereby 
be  made  to  correspond  to  a  warranty  of  neutrality.'* 

797.  The  same  rule  ivill  apply  where  goods  are  so  assigned  in 
anticipation  of  a  war.^ 

Sir  William  Scott  condemned  as  enemy  property  goods  con- 
signed to  a  Dutch  consignee,  at  the  Cape  of  Good  Hope,  then  a 
colony  of  the  enemy ;  but  before  the  capture  of  the  goods,  the 
colony  had  been  captured,  and  the  inhabitants  had  sworn  allegi- 

1  See  Tlie  Packet  dc  Bllboa,  2  Chr.  4  The  Vrow  Margaretha,!  Chr.  Rob. 
Rob.  134  ;  I'lie  Anna  Catbarina,  4  id.  33G  ;  The  Carl  AValter,  4  id.  207 ;  The 
107,  113,  n.  Jan  Frederick,  5  id.  128.     Whether 

2  The  Aurora,  4   Chr.  Rob.   218;  such  is  the  object  of  the  transfer  is  to 
The  Josephine,  4  id.  25 ;  The  Caro-  be  gathered  from  the  circumstances. 
Una,  1  id.  305  ;  The  Frances,  8  Cranch,  5  The  Jan  Fi-ederick,  2  Chr.  Rob. 
335  ;  The  Venus,  8  id.  253  ;  The  Mer-  128  ;  The  Francis,  1  Gall.  445  ;  S.  C, 
rimack,  8  id.  317.     See  1  Ducr,  Mar.  8  Cranch,  335  ;  9  id.  289. 

Ins.  427,  &c. 

^  The  Cousinc  INIarianne,  1  Ed.  Ad. 
K.  340. 


SECT.  VI.]     ORIGIN   OF   PROPERTY   WARRANTED   NEUTRAL.  449 

ance  to  Great  Britain.  That  is,  though  the  owner  changes  his 
national  character  during  the  transit  of  the  goods,  the  national 
character  of  his  property  in  transit  does  not  change. ^ 

798.  Where  the  warranty  of  neutrality  in  a  policy  is  forfeited 
by  the  act  of  the  assured,  as  to  part  of  the  subject  insured,  it  is  a 
forfeiture  of  the  entire  policy. 

As  where,  after  capture  and  before  condemnation,  the  assured 
assigned  half  of  his  interest  to  a  belligerent  assignee,  though  for 
the  purpose  of  preventing  its  condemnation.^ 

799.  The  warranty  is,  that  the  j)roperty  is  neutral  at  the  begin- 
ning of  the  risk,  and  shall  continue  to  be  so,  as  far  as  this  depends 
on  the  assured  or  his  agents.  But  if  he  becomes  a  belligerent,  or 
the  property  assumes  a  belligerent  character  immediately  after  the 
risk  commences  by  an  act  of  his  government,  or  that  of  any  other 
government,  it  is  not  a  breach  of  the  ivarranty.  This  is  one  of 
the  risks  taken  by  the  insurers.^ 

SECTION  VI.   ORIGIN  OF  PROPERTY  WARRANTED  NEUTRAL. 

800.  Some  property  is  impressed  with  a  belligerent  character 
b}''  its  origin.  Jurisprudence  has  never  gone  the  length  of  main- 
taining that  the  produce  of  the  opposite  belligerent  country,  or 
its  colonies,  has  a  lasting  belligerent  character  on  account  of  its 
origin  independently  of  the  ownership,  but  it  has  been  held  that 
the  produce  of  a  plantation  owned  by  a  neutral  in  a  colony  of  a 
belligerent,  retains  its  belligerent  character  while  in  transitu  on 
any  maritime  destination,  whether  to  a  neutral  country  or  a  belli- 
gerent one,  while  it  remains  the  property  of  such  planter.^ 


1  TheDunckliebaar  Afrlcaanl  Chr.  lias  become  a  subject  by  conquest, 

Rob.  107.     But  he  rested  his  decision  merely  because  it  happens  to  be  afloat, 

wholly  upon  a  previous  one  of  the  See  1  Duer,  Mar.  Ins.  437. 

Lords  of  the  Privy  Council  Negocie  2  Goold   v.   Universal  Ins.   Co.,  2 

en  Zeevaart,  stated  by  him,  id.  Ill,  Caines,  73. 

and  apparently  against  his  own  opi-  3  Eden  v.  Parkinson,  Doug.  732  ; 

nion  ;  as  it  well  might  be,  for  it  is  Garrels  v.  Kensington,  8  T.  R.  230 ; 

surely  a  very  singular  doctrine  that  Saloucci  v.  Johnson,  4  Doug.  224. 

confiscates  the  property  of  one  who  <  The  Phoenix,  5  Chr.  Kob.  20 ;  The 
38* 


450  EXPRESS    WARRANTIES,    STIPULATIOXS,   ETC.      [CHAP.  IX. 

It  does  not  appear  why  the  same  rule  is  not  as  applicable  to  the 
produce  of  the  home  territory  of  the  belligerent,  though  it  has  not, 
that  I  am  aware  of,  been  so  applied. 

801.  The  produce  or  other  property  derived  from  a  belligerent 
country  or  its  dependencies  during  war,  usually  becomes  neutral 
on  its  coming  to  be  absolutely  owned  by  a  neutral,  and  being  en- 
tirely disengaged  from  belligerent  trade,  protection,  and  use.  Still 
its  origin  in  a  belligerent  country  is  of  weight,  as  the  ground  of 
presumption  of  its  belligerent  character,  and  of  imposing  upon  the 
neutral  claimant  the  burden  of  more  decided  proof  of  its  being 
neutral,  as  will  appear  subsequently. 


SECTION    VII.       DOCUMENTS,    PROOFS,    AND    INSIGNIA,    OF    NEUTRAL 

PROPERTY. 

802.  Under  a  warranty  of  the  neutrality,  the  ship  or  goods 
must  not  only  be  owned  by  neutrals,  and  not  be  of  a  belligerent 
character  in  themselves,  but  they  must  also  be  accompanied  by 
sufficient  tokens  and  documents  to  show  that  they  are  entitled  to 
be  respected  as  neutral  property. 

What  evidence  is  requisite  in  this  respect  depends  upon  the  law 
of  nations,  and  the  laws  and  treaties  of  the  country  to  which  the 
ship  and  the  owner  of  the  property  belong.  It  cannot  be  said 
precisely  what  documents  will  be  sufficient  to  answer  the  war- 
ranty, since  the  municipal  regulations  and  treaties  of  a  country  are 
liable  to  change.  The  warranty  requires,  in  general,  that  the  ship 
or  cargo  should  be  accompanied  with  unequivocal  evidence  of  its 
national  character.^ 

803.  The  bill  of  sale  of  the  shij)  must  correspond  to  the  ivar- 
rantyr 

Maastrom  and  JulTrow  Catharina,  5  Goix    v.  Low,  1  Johns.  Cas.  341;  3 

id.  21;  The  Vrow  Anna  Catharina,  Doug.  126;  Barzillay  i'.  Lewis,  Park. 

5  id.  IGl.  526  ;  Blagge  v.  New  York  Ins.  Co.,  1 

1  Coolidge  t'.  N.  Y.  Firemcns'  Ins.  Caines,  549. 

Co.,  14  Johns.  308  ;  Iliggins  r.  Liver-  2  The    San  Jose  Indiano,  2  Gall, 

more,  14   Mass.   11.106;    Barker  v.  268. 
Phccnix  Ins.  Ins.  Co.,  8  Johns.  307; 


SECT.  VII.]  DOCUMENTS,  PROOFS,  ETC.,  OF  NEUTRAL  PROPERTY.     451 

804.  The  flag  is  (he  most  obvious  badge  of  the  national  cha- 
racter of  the  ship,  and  by  the  law  of  nations  the  ship  is  liable  to 
be  considered  as  belonging  to  the  nation  indicated  by  its  flag.^  A 
ship  warranted  neutral  must  therefore  bear  no  other  than  the  flag 
of  a  nation  that  was  neutral  at  the  commencement  of  the  risk,  and 
one  warranted  of  any  particular  national  character  must  bear  no 
other  flag  than  that  of  the  nation  to  which  the  warranty  relates. 

805.  A  vessel  warranted  neutral  must  have  the  usual  certificate 
of  its  national  character. 

The  sea-letter  or  pass  is  one  of  the  usual  documents  for  this 
purpose ;  which  is  a  certificate  granted,  directly  or  indirectly,  by 
the  supreme  authority  of  a  nation,  declaring  that  the  ship  sails 
under  the  protection  of  such  nation,  and  expressly  or  by  implica- 
tion giving  notice  to  all  people  that  she  is  to  be  so  regarded.  The 
national  character  of  the  vessel  is  therefore  explicitly  avowed  by 
the  sea-letter,  and  it  is  not  permitted  to  disown  the  character  thus 
formally  assumed.^ 

In  a  policy  on  goods  from  New  York  to  New  Orleans,  the 
assured  warranted  that  "  the  vessel  sailed  under  a  sea-letter." 
The  vessel  had  on  board  a  certificate  of  the  collector  and  naval 
officer  of  the  port  of  New  York,  stating  that  the  assured  had  made 
oath  that  the  vessel  was  wholly  owned  by  himself  and  other  Ame- 
rican citizens.  The  assured  offered  to  prove  that  this  certificate 
was  commonly  understood  and  known  in  New  York  as  a  sea-let- 
ter. On  behalf  of  the  underwriters  it  was  insisted,  that  the  laws 
and  treaties  of  the  United  States  defined  a  sea-letter  to  be  a  paper 
under  the  seal  of  the  United  States.  The  form  of  this  paper  had 
been  prescribed  in  the  treaty  of  1778  with  France,  of  1782  with 
the  Netherlands,  and  of  1795  with  Spain,  where  it  is  called  a  sea- 
letter. 

By  an  act  of  Congress  of  1796,^  the  Secretary  of  State  was 


1  The   Success,  1  Dod.  131  ;  The  p.  36,  for  the  form  agreed  upon  by 
Vrow  Elizabeth,  5  Chr.  Rob.  2.  the  United  States  and   Holland,  in 

2  The   Vigilantia,  1   Chr.   Rob.  1 ;  1782 ;  and  p.  58,  for  that  agreed  upon 
The  Vreede  Scholtys,  5  id.  5,  n.    See  by  Great  Britain  and  Russia,  in  1801. 
6  Wheat.  App.  12,  for  what  is  consi-  3  Laws  U.  S.,  Vol.  II.  c.  339. 
dered  to  be  a  sea-letter  in  France; 


452  EXPRESS   WARRANTIES,    STIPULATIONS,   ETC.      [CIIAP.  IX. 

authorized  to  prepare  the  form  of  a  passport.  Under  this  law  the 
same  form  was  adopted  which  had  been  agreed  upon  in  the  above 
treaties.  By  another  act  of  Congress,^  it  was  provided  that  every 
unregistered  vessel  owned  by  citizens  of  the  United  States,  and 
sailing  with  a  sea-letter,  should,  at  the  request  of  the  master,  be 
furnished  by  the  collector  with  a  passport  of  the  form  adopted  in 
pursuance  of  the  preceding  act.  This  last  act  makes  a  distinction 
between  a  sea-letter  and  a  passport.  The  court,  however,  under- 
stood a  passport  and  sea-letter  to  be  the  same  document,  the  form 
of  which  they  held  to  be  so  definitely  settled  by  the  treaties  above 
mentioned,  and  the  act  of  1796,  that  no  parol  evidence  could  be 
admitted  to  show  that  any  other  document  was  to  be  understood 
as  a  sea-letter  within  the  warranty.^ 

The  Court  of  Errors,  however,  reversed  this  decision,  and  per- 
mitted the  parties  to  prove  what  was  understood  in  New  York  by 
the  term  "sea-letter  ;"  and  it  appeared  by  the  evidence,  to  be  the 
certificate  of  the  collector  and  naval  officer.^ 

It  cannot  be  requisite  that  a  vessel  warranted  neutral,  or  of  any 
particular  national  character,  must  in  all  cases,  to  comply  with  the 
warranty,  have  a  sea-letter  corresponding  to  it ;  since  it  depends 
upon  the  government  of  a  country  to  give  such  letter.  The  war- 
ranty can  only  require  that  the  vessel  shall  have  such  documents 
to  show  its  national  character  as  the  government  will  furnish,  or 
the  owners  can  procure.  But  as  it  is  a  very  general  practice  of 
governments  to  provide,  in  time  of  war,  for  granting  sea-letters  to 
vessels,  the  warranty  will,  in  general,  be  equivalent  to  a  stipula- 
tion tliat  the  vessel  shall  be  supplied  with  this  document.  And 
where  the  government  would  furnish  it  if  applied  for,  and  it  is 
usual  to  have  it  on  board,  it  is  a  breach  of  the  warranty  to  be 
without  it. 

806.  The  register  is  an  important  document  under  this  ivar- 
ranty,  as  it  shows  to  whom  and  to  what  port  a  vessel  belongs,  and 
is  certified  by  some  officer  of  the  customs,  and  accordingly  bears 
with  it  some  stamp  of  public  authority. 

1  Laws  U.  S.,  Vol.  III.  c.  329.  3  Sleght    v.    Hartshorn,   2  Johns. 

2  Slcght  V.  Khinekndcr,  1  Johns.     531. 
192. 


SECT.  VII.]  DOCUMENTS,  PROOFS,  ETC.,  OF  NEUTRAL  PROPERTY.     453 

This  document  and  the  sea-letter  constitute  the  most  material 
proof  of  the  national  character  of  the  ship.  But  it  depends  on  the 
laws,  and  usages,  and  treaties  of  a  country,  whether  either  of  them 
is  absolutely  necessary  under  a  warranty  of  national  character. 
Where  a  vessel  warranted  American  had  a  sea-letter,  but  no  regis- 
ter, this  was  held  to  be  a  compliance  with  the  warranty. ^ 

Mr.  Justice  Thompson,  of  New  York,  remarks,  that  the  regis- 
ter of  the  ship  is  the  only  document  necessary  to  be  on  board,  in 
order  to  comply  with  the  warranty  of  national  character,  in  time 
of  universal  peace.- 

807.  The  hill  of  sale,  charter-party,  instructions  to  the  master, 
shipping-paper,  muster-roll  or  role  cVequipage,  and  log-book,  must 
show,  as  far  as  they  exhibit  any  proofs,  that  the  vessel  is  of  the 
national  character  warranted. 

808.  Under  this  warranty,  the  cargo  must  be  accompanied  by 
proof  of  its  national  character  ;  the  invoices,  bills  of  lading,  the 
letters  relating  to  the  goods,  and  the  certificates  of  consids  or  other 
officers,  must  all  be  consistent  with,  and  confirm,  the  warranty.^ 

Belligerent  nations  have  not  a  right  to  prescribe  to  neutrals  by 
what  vouchers  their  title  to  their  property  shall  be  authenticated. 
But  the  right  of  throwing  the  burden  of  proof  upon  the  neutral  is 
conceded  to  them  by  general  usage,  or,  in  other  words,  by  the  law 
of  nations.  By  declaring  war  against  each  other,  they  seem,  by 
general  consent,  to  acquire  the  right  of  demanding  of  neutrals  the 
proof  that  their  property  on  the  ocean  is  entitled  to  exemption 
from  capture.  Under  this  warranty,  therefore,  the  property  must 
be  accompanied  by  documents  of  some  description,  and  sufficiently 
authenticated,  to  prove  beyond  a  reasonable  doubt  that  the  pro- 
perty is  of  the  national  character  warranted. 

809.  If  property  insured,  and  warranted  neutral,  is  documented, 
and  on  capture  claimed,  as  belligerent,  the  warranty  is  thereby 
forfeited.'* 

1  Barker    r.   Phoenix   Ins.    Co.,   8  rica,  5  Binn.  4G4 ;  SifFken  r.  Lee,  5 

Johns.  307.  B.  &  P.  484. 

-  Catlet  V.  Pacific  Ins.  Co.,  1  Paine's         4  Calbraith  v.  Gracie,  1  Wash.  C.  C. 

R.  594.  R.  219. 

3  Griffith  V.  Ins.  Co.  of  North  Ame- 


454  EXPRESS   WARRANTIES,    STIPULATIONS,   ETC.      [CHAP.  IX. 

Chief  Justice  Marshall  says,  "  that  in  general  the  concealment 
of  -papers  amounts  to  a  breach  of  the  warranty ;  "  ^  and  carrying 
a  material  paper  written  in  sympathetic  ink  seems  to  be  equivalent 
to  a  concealment  of  papers. - 

Goods  were  insured  from  Baltimore  to  Bourdeaux,  in  1806, 
warranted  American  property.  Some  papers  relating  to  a  former 
shipment  were  concealed  in  a  cask  on  board,  and  those  papers 
were  referred  to  in  a  letter  written  upon  another  in  sympathetic 
ink,  and  the  papers  were  such  as  to  throw  a  mystery  over  the 
shipment,  and  raise  a  doubt  as  to  its  national  character,  though 
they  were  subsequently  explained  to  the  court,  by  the  assured, 
consistently  with  the  warranty.  It  was  held,  however,  to  be  a 
breach  of  the  warranty.-' 

If  a  cargo  warranted  neutral  be  accompanied  with  simulated 
papers,  giving  it  the  appearance  of  being  the  property  of  bellige- 
rents, though  such  papers  are  taken  merely  for  the  purpose  of 
evading  the  municipal  regulations  of  trade  of  a  belligerent,  which 
is  held  to  be  justifiable,  yet  the  cargo  is  liable  to  be  considered  by 
the  other  belligerent  as  of  the  assumed  national  character  ;  or  is 
in  so  great  danger  from  this  cause,  that  the  use  of  such  papers  is 
held  to  be  a  violation  of  the  warranty  of  neutrality.^ 

But  if  leave  be  given  in  the  policy  to  carry  simulated  papers,  it 
is  not  a  breach  of  the  warranty  to  have  them  on  board. ^  And 
Chief  Justice  INIarshall  says,  that  when  the  underwriters  know,  or 
ought  to  know,  that,  by  the  usage  of  the  trade,  two  sets  of  papers 
are  carried  to  protect  the  property,  they  impliedly  consent  to  the 
usage,  and  the  set  of  papers  which  will  protect  the  property  when 
its  national  character  is  called  in  question,  is  to  be  produced. ° 


'  Livingston  v.  Maryland  Ins  Co.,  Sir  James  Mansfield  makes  a  query 

7  Cranch,  53C.  whether  a  neutral  vessel  may  carry 

2  Carrerc  v.  Union  Ins.  Co.,  2  Hall's  simulated  papers.     Steel  v.  Lacy,  3 
Jour.  197;  3  Harris  &  Johns.  324.  Taunt.  285.     Mr.  Park,  p.  531,  says 

3  Carrerc  r.  Union  Ins.  Co.,  3  Har-  this  query  is  answered  by  the  above 
ris  &  Johns.  324.  cases  in  East. 

*  Ilorncycr  v.  Lushington,  15  East,         ^  Uell  r.  Bromfield,  15  East,  364. 
46  ;  Oswell  r.  Vigne,  id.  70 ;  Blagge        ^  Livingston  v.  Maryland  Ins.  Co., 

i;.  New  York  Ins.  Co.,  1  Caines,  549.  7  Cranch,  506. 


SECT.  VII.]  DOCUMENTS,  PROOFS,  ETC.,  OF  NEUTRAL  PROPERTY.     455 

810.  If  the  master  of  a  neutral  ship  covers  belligerent  property 
on  board  as  neutral,  it  is  a  forfeiture  of  the  neutrality  of  the  shlp.^ 

The  disguising  of  belligerent  goods  by  the  master,  even  though 
without  the  consent  or  knowledge  of  the  ship-owner,  has  been 
held  to  be  a  forfeiture  of  the  neutrality  of  the  part  of  the  cargo 
belonging  to  the  ship-owner,  the  acts  of  the  master  in  this  respect 
being  held  to  be  imputable  to  the  ship-owner.^ 

811.  The  forfeiture  of  neutrality  by  the  ship-oivner  or  captain, 
does  not  forfeit  the  neutral  character  of  goods  shipped  by  another 
neutral,  and  duly  documented  as  such. 

812.  Where  goods  are  shipped  in  time  of  peace,  and  docu- 
mented as  of  another  national  character  than  their  real  one,  but 
without  any  reference  to  neutral  or  belligerent  rights,  or  the  break- 
ing out  of  a  war,  and  the  nation  whose  character  is  assumed  be- 
comes party  to  a  war,  the  property  may  be  vindicated  as  neutral? 

813.  The  law  of  nations  in  regard  to  what  is  to  be  considered 
neutral  property ,  and  in  regard  to  the  conduct  necessary  to  secure 
it  respect  as  such,  is  liable  to  be  controlled  by  treaty,  since  nations 
may  substitute  express  rules  for  those  implied  obligations  which 
the  general  law  imposes  without  any  stipulation.  And  modifica- 
tions of  the  law  of  nations  in  these  respects  have  been  made  in 
many  different  treaties.^ 

In  the  treaty  with  France,  1778,  it  was  stipulated,  that,  in  case 
of  war,  if  the  sea-letters  of  the  vessels  of  the  neutral  party  should 
express  "the  place  of  habitation  of  the  master,"  they  should  not 
be  molested  by  the  other.  The  Mount  Vernon,  being  insured  in 
England  and  warranted  American,  had  a  sea-letter  running  as  fol- 


1  Schwartz  v.  Ins.  Co.  of  North  ^  Answer  to  the  Prussian  Memo- 
America,  3  "Wash.  C.  C.  R.  117 ;  3  id.  rial,  Col.  Jurid.,  Vol.  I.  p.  137.  See 
276;  Clarksonr.  Philadelphia  Ins.  Co.,  treaties  of  the  United  States  with 
1  Brown's  (Pa.)  R.  152.  European   powers;   Laws   of  U.    S. 

■2  Phcenix  Ins.  Co.  v.  Pratt,  2  Biun.  Vol.  I.,  ed.  of  1815  ;  Treaty  of  U.  S. 

308.    See  also  The  Fortuna,  3  Wheat,  and  France,  1 778  ;  Rich  v.  Parker,  7 

245.  T.  R.  705. 

3  The  Vreede  Scholtys,  5  Chr.Rob. 
5,  n. ;  and  see  The  Ann  Green,  1  Gall. 
274. 


456  EXPRESS    WARRANTIES,    STIPULATIONS,    ETC.      [CIIAP.  IX. 

lows:  "Permission  has  been  granted  to  D.,  master  of  the  ship 
Mount  Vernon,  of  Philadelphia,  of  the  burden,"  &.c.  Lord  Ellen- 
borough  said,  the  name  of  the  town  in  the  passport  referred  to  the 
ship,  not  to  the  master,  and  that  the  vessel,  not  being  navigated 
according  to  the  treaty,  had  forfeited  her  neutrality,  being  at  least 
subject  to  detention  by  French  cruisers.^ 


SECTION    VllT.        WARRANTY    OF    NEUTRAL    PROPERTY    REQUIRES 
NEUTRAL    TRADE,    EMPLOYMENT,    AND    CONDUCT. 

814.  In  case  of  property  belonging  to  a  partnership  consisting 
of  neutral  and  belligerent  members,  so  far  as  it  is  affected  by  the 
ownership  merely,  the  interest  of  the  neutral  partners  is  neutral, 
and  that  of  the  belligerent  partners  is  belligerent.^ 

The  locality  of  a  house  affects  its  trade.  The  interest  of  a 
neutral  partner  in  a  house  of  trade  established  in  a  belligerent 
country  is  belligerent.^ 

But  the  interest  of  the  same  neutral  partner  or  partners  in  the 
business  of  a  conmiercial  house  in  a  neutral  country  will  still  be 
neutral,  notwithstanding  such  belligerent  interest  in  another  esta- 
blishment.^ 


1  Baring  v.  Christie,  5  East,  398.  of  national  protection.  See  also  Bar- 
See  also  Baring  v.  Claggett,  3  B.  &  ing  v.  Royal  Exeh.  Ass.  Co.,  5  East, 
P.  201,  on  the  same  facts.     The  case  99. 

turns  upon  the  vessel's  not  being  enti-  ^  Xhe  Jacobus  Johannas,  before  the 

tied  to  a  register,  from  which  Lord  Lords  of  Appeal,  1 785 ;  The  Ospray, 

Alvanley  and  the  other  judges  sup-  before  the  same  tribunal,  1795;  both 

posed  she   was  not  entitled   to   the  cited  1  Chr.  Rob.  14 ;  The  Vigilantia, 

privileges    of   an    American    vessel.  1  id.  1. 

Ciiief  Justice  Kent  supposes,  8  Johns.  ■^  The  Susa,  2  Chr.  Rob.  251  ;  The 

320,  that  Lord  Alvanley  did  not  know  Portland,  3  id.  41  ;  and  The  Herman, 

of  any  other  act  of  Congress  than  that  4  id.  228.    See  The  San  Jose  Indiano, 

of  1792,  on  this  point,  and  seems  to  2  Gall.  2G8;  Society,  &c.  r.  Wheeler, 

think   that    liis   opinion   would   have  2  id.  105. 

been  difFerent  lia<l  he  known  of  that  4  The  Antonia  Johanna,  1  Wheat, 

of  1802,  giving  vessels  not  entitled  to  159;  The  Indiana,  3  Chr.  Rob.  44; 

a  register,  but  owned  by  citizens  of  The  Herman,  4  id.  228. 
the  United  States,  all  the  advantages 


SECT.  VIII.]      NEUTRALITY    OF   TRADE   AND    CONDUCT.  457 

815.  Where  the  ship,  goods,  or  any  insurahh  interests  of  a  neu- 
tral, hy  their  insignia,  locality,  employment  in  trade,  or  use,  are 
mixed  up  and  identified  with  the  property  and  interests  of  one  of 
the  belligerents,  the  same  are  subject  to  be  treated  according  to 
their  apparent  character  as  enemy  jjroperiy  by  the  other,^  and 
accordingly  will  not  correspond  to  a  warranty  of  its  neutrality. 

Property  despatched  to  a  neutral  in  pursuance  of  a  contract 
with  a  belligerent  government,  or  employed  by  him  in  a  trade  for 
which  a  privilege  is  given  by  a  belligerent,  does  not  answer  to  a 
warranty  of  neutrality .^ 

The  freight  of  a  neutral  vessel  for  carrying  a  belligerent  cargo, 
the  vessel  not  being  chargeable  with  unneutral  conduct,  is  neutral, 
and  is  allowed  in  case  of  the  capture  and  condemnation  of  the 
cargo.^ 

816.  Whether  all  the  monopolized  trade  of  the  ports  or  terri- 
tory of  a  nation  retained  to  its  citizens  during  peace,  is  inter- 
dicted to  neutrals  in  time  of  war  1 

There  is  a  diversity  of  decisions  by  admiralty  tribunals,  and  of 
opinions  of  jurists  and  statesmen,  as  to  the  particular  circumstances 
whereby  the  property  of  a  resident  in  a  neutral  country  is  liable 
to  be  treated  as  that  of  an  enemy. 

According  to  the  opinion  of  Sir  William  Scott,  and  other  British 
adiniralty  judges,  the  products  of  a  belligerent  country  or  its  colo- 
nies, acquired  by  a  neutral  in  the  place  of  their  origin,  to  be  trans- 
ported in  the  coasting  or  colonial  trade  of  such  country  by  him  on 
his  own  account  and  risk,  are  to  be  regarded  by  the  other  bellige- 
rent during  its  transit  as  being  enemy  property,  and  liable  to  cap- 
ture and  condemnation  as  such. 

The  American  government,  tribunals,  and  statesmen  oppose 
that  doctrine. 


1  The  Princessa,  2  Chr.  Rob.  49 ;  Phoenix,  5  Chr.  Rob.  20 ;  The  Caro- 

The  Anna  Catharina,  4  id.  107 ;  The  Una,  4  id.  256  ;  The  Edward,  4  id.  68. 

Rendsborg,   4   id.    121;    The   Vrow  2  The  Anna  Catharina,  4  Chr.  Rob. 

Anna  Catharina,  5  id.  15;  2  Wheat.  107. 

R.  App.  29 ;  The  Susa,  2  Chr.  Rob.  3  The  Antonia  Johanna,  1  Wheat. 

251;  The  Ann  Green,  1  Gall.  274;  159;    and    admiralty   jurisprudence 

The  San  Jose  Indiano,  2  id.  268  ;  The  passim. 
VOL.  I.                           39 


458  EXPRESS   WARRANTIES,   STIPULATIONS,  ETC.      [CHAP.  IX. 

The  British  tribunals  allege  in  support  of  their  position,  that, 
according  to  the  general  policy  of  nations,  each  country  confines 
its  colonial  and  coasting  trade  to  its  own  subjects,  and  it  is  only 
when  any  country  is  exposed  to  capture  by  the  naval  forces  of  its 
enemy,  that  it  admits  a  neutral  into  such  trade.  They  do  not 
pretend  that  the  rights  and  extent  of  the  trade  of  a  neutral  coun- 
try with  their  enemy  are  to  remain  unaffected  by  the  war,  for,  as 
we  have  seen,  it  is  curtailed  at  once  of  the  whole  trade  that  is  thus 
rendered  contraband  of  war. 

On  the  side  of  the  neutral,  it  is  urged  that,  as  he  is  subject  to 
all  the  disadvantages  and  privations,  he  is  justly  entitled  to  all  the 
advantages,  that  are  merely  incidental  and  consequential  to  a  state 
of  war  between  other  nations  ;  that  it  is  not  possible  to  say  what 
privileges  he  might  have  had  in  the  coasting  or  colonial  trade  of 
either  belligerent,  if  j)eace  had  continued,  and  therefore  the  assump- 
tion that  he  would  have  still  continued  under  the  same  restrictions 
as  before,  is  not  well  founded. 

He  insists  that  a  cooperation  with  either  belligerent  in  prosecut- 
ing the  war  is  the  only  intercourse  of  which  he  is  curtailed  by  the 
law  of  nations,  that  is,  that  all  species  of  trade,  excepting  contra- 
band, remain  open  and  subject  to  be  prosecuted  by  him  in  the 
same  manner  as  they  might  have  been,  the  parties  consenting,  had 
there  been  no  war.^ 

The  question  is  one  that  must  he  left  to  be  settled  by  interna- 
tional stipulations  and  mutual  concessions,  or  the  right  of  the 
strongest  ;  for  in  such  a  multifarious  complexity  of  relations,  inte- 
rests, and  facts,  it  cannot  be  expected  that  general  principles  can 
be  brought  to  bear  with  sufficient  force  to  reconcile  the  conflicting 
pretensions. 

817.  Produce  of  a  colony  of  a  belligerent  country  being  once 
exported  to  a  neutral  country,  and  there  landed  in  the  regular 

1  See  Mr.  IMonroe's  Letter  to  Lord  the  Lords  of  Appeal,  cited  1  Wheat. 
Mulgrave,  September  23,  1805  ;  and  App.  515  ;  Vasse  v.  Ball,  2  Dall.  270; 
Mr.  Madison's  Letter  to  Messrs.  Mon-  Wait's  State  Papers,  ISOG,  and  sub- 
roe  &  Pinckney,  May  11,  1806,  cited  sequently ;  remarks  of  Story,  J.,  iu 
1  Ducr,  Ins.  p.  701.  Sec  also  Mr.  The  Ann  Green,  1  Gall.  274,  at  p. 
Ducr's  remarks,  id.;  Tin-  Snip,  before  289. 


feECT.  VIII.]      NEUTKALITY   OF   TRADE   AND    CONDUCT.  459 

course  of  trade,  is  agreed  on  all  sides  to  have  no  longer  a  bellige- 
rent character,  on  account  of  its  origin,  or  on  account  of  the  trade 
of  the  colony  having  been  restricted  to  the  citizens  of  the  belhge- 
rent  country  in  time  of  peace. 

Property  being  warranted  Dutch,  and  taken  on  board  at  St. 
Eustatla,  it  was  suggested  that  a  part  of  it  had  been  brought  from 
French  islands,  then  belligerent,  and  put  on  board  of  the  vessel 
from  the  boats  in  which  it  had  been  brought,  without  having  been 
landed  at  all  at  St.  Eustatia.  Lord  Mansfield  :  "It  is  now  a  set- 
tled point,  that  it  is  the  same  thing  as  if  it  had  been  landed  on  the 
Dutch  shore  and  put  on  board  afterwards,"  in  which  case  he  im- 
plies that  there  could  be  no  doubt  of  its  neutrality. i 

This  construction  seems  to  have  been  more  liberal  towards  the 
neutral  character  of  the  goods  than  some  of  the  subsequent  juris- 
prudence in  Great  Britain. 

If  a  vessel  bringing  produce  from  a  belligerent  colony  merely 
enters  a  neutral  port  without  unloading,  and  proceeds  thence  with 
its  cargo  to  a  subsequent  destination,  the  passages  previous  and 
subsequent  to  the  entry  at  such  neutral  port  are  parts  of  one  voy- 
age, and  the  cargo  still  retains  the  national  character  of  the  place 
of  its  origin. 

This  doctrine  is  a  corollary  from  that  previously  stated,  namely, 
that  a  belligerent  nation  cannot,  during  a  war,  change  the  national 
character  of  its  trade  by  any  indulgence  granted  to  neutrals,  so 
as  to  abridge  the  rights  of  the  antagonist  belligerents  to  make 
prizes.  This  doctrine  runs  through  the  British  admiralty  jurispru- 
dence. 

818.  The  public  armed  ships  of  a  belligerent  have  a  right  to 
bring  to  and  search  neutral  merchant-vessels,  that  is,  to  go  on 
board  of  them  and  examine  the  ship's  papers  and  those  relating  to 
the  cargo,  and  put  questions  to  the  captain  or  other  officers  touch- 
ing the  neutral  character  of  the  property,  and,  in  general,  to  exa- 
mine the  property,  the  papers  by  which  it  is  accompanied,  and 
the  persons  having  charge  of  it,  for  the  purpose  of  ascertaining 
whether  it  is  belligerent  or  neutral. 

I  Berens  v.  Rucker,  1  W.  Bl.  313. 


460  EXPRESS    -WARRANTIES,    STIPULATIONS,   ETC.      [CHAP.  IX. 

A  resistance  of  search  that  is  legally  demanded,  is  a  breach  of 
the  warranty  of  neutrality } 

This  right  is  sometimes  conceded  with  reluctance  by  neutrals, 
and  as  often  enforced  with  rigor  by  belligerents.  It  has  been  ren- 
dered so  inconvenient,  that  many  attempts  have  been  made  to 
limit  and  regulate  its  exercise,  particularly  by  Prussia,  Holland, 
and  Sweden,  about  the  middle  of  the  last  century,-  and  again  in 
17S0  by  Russia  and  the  other  members  of  the  Armed  Neutrality. 

SI  9.  The  secreting  or  disguising  of  property  by  a  neutral,  for 
the  purpose  of  infringing  upon,  evading,  or  preventing  the  exer- 
cise of,  the  rights  of  either  belligerent  as  such,  not  only  leaves  the 
ship,  of  which  the  national  character  is  so  falsified,  or  the  other 
property  so  secreted  or  disguised,  exposed  to  seizure  and  condem- 
nation, but  also  exposes  the  other  property  of  the  neutral,  which  is 
implicated  in  the  same  attempt  or  adventure,  to  seizure  and  con- 
demnation by  the  belligerent,  and  is  a  breach  of  the  warranty  of 
neutrality  in  reference  to  the  latter  no  less  than  the  former.^ 

As,  by  resisting  search,  or  attempt  to  rescue  ;^  shipping  a  cargo 
in  a  public  armed  belligerent  ship,^  or  sailing  under  convoy  of  a 
belligerent;^  unless  it  is  for  the  purpose  of  avoiding  a  seizure  in 
outrageous  violation  of  the  law  of  nations  by  the  antagonist  belli- 
gerent, as  in  the  case  of  Bonaparte's  Milan  Decree,'^  which  resist- 
ance rests  upon  the  right  of  defence  of  grossly  illegal  violence. 

A  warranty  that  a  vessel  is  neutral  is  not  forfeited  merely  by 
the  supercargo  being  a  belligerent  subject. 


1  M'Lellan  r.  Maine  Fire  &  Mar.  3  The  Eliza  &  Katy,  G  Chr.  Rob. 
Ins.  Co.,  12  Mass.  R.  24C  ;  Snowdon  185. 

I".  Phoenix  Ins.  Co.,  3  Binn.  457;  Ro-  ^  Ut  supra. 

binson  v.  Jones,  8  Mass.  R  53G  ;  The  5  The  Fanny,  1  Dod.  443. 

Mars,  G  Chr.  Rob.  79  ;  The  Pennsyl-  6  The  IMaria,  1  Chr.  Rob.  340 ;  The 

vania,  1  Act.  Ad.  R.  33  ;  The  Pizarro,  Joseph,  1  Gall.  545 ;  S.  C,  8  Cranch, 

2  Wheat.  227;  The  Maria,  1  Chr.  Rob.  451;   The  JuUa,   id.  181;    S.   C,  1 

340  ;  Garrels  i-.  Kensington,  8  T.  R.  Gall.  594 ;  The  Sampson,  1  Chr.  Rob. 

230 ;  The  Marianna  Flora,  11  "Wheat.  346. 

43;  The  Romeo,  G  Chr.  Rob.  351.  '  Snowdon  r.  Phcenix  Ins.  Co.,  3 

2  Collect.   Jurid.,   Vol.   I.   p.  144;  Binn.  457. 
Answer  to   the    Prussian    Memorial, 

1  Chr.  Rob.  305,  n. 


SECT.  VIII.]      NEUTRALITY   OF   TRADE   AND    CONDUCT.  461 

So  held  of  a  neutral  Portuguese  ship,  having  an  English  super- 
cargo, England  being  (1781)  at  war  with  France.^ 

820.  It  is  not  easy  to  say  precisely  what  acts  may  be  lawfully 
done  in  the  exercise  of  the  right  of  search.  Ilubner  thinks  it 
should  be  confined  to  the  examination  of  the  papers.-  But  it  has 
not  been  so  limited  in  practice  ;  and  in  considering  the  liability  of 
the  captors  to  pay  costs  and  damages  for  the  abuse  of  this  right, 
courts  have  permitted  them,  in  justification  of  their  conduct  in  de- 
taining neutral  vessels,  to  give  evidence  of  every  circumstance  that 
came  to  their  knowledge,  tending  to  throw  suspicion  upon  the 
national  character  of  the  property. 

The  principle  acted  upon  seems  to  be,  that  the  belligerent  crui- 
ser may,  when  its  character  and  commission  are  made  knotvn,  take 
every  reasonable  means,  without  using  any  unnecessary  force  or 
violence,  to  ascertain  the  national  character  of  the  vessel  and  cargo, 
and  if  any  circumstance,  from  whatever  source  a  knowledge  of  it 
may  be  obtained,  gives  a  reasonable  ground  to  doubt  the  neutral 
character  of  the  property,  it  ivill  justify  a  detention  of  the  vessel. 
But  where  the  manner  of  making  search  is  regulated  by  treaty, 
as  it  has  been  in  some  of  the  treaties  of  the  United  States  with 
foreign  powers,  the  express  stipulations  of  the  parties  will  deter- 
mine what  is  a  legal  mode  of  search. 

821.  It  seems  to  be  implied,  in  many  cases,  that  neutrals  are 
obliged  to  submit  to  be  searched,  and  detained  at  the  discretion  of 
a  known  belligerent.  Chief  Justice  Parsons  says  :  "The  bellige- 
rent having  a  right,  by  the  law  of  nations,  to  visit  and  search  neu- 
tral vessels  to  prevent  them  from  entering  or  leaving  a  port  under 
lawful  blockade  ;  to  seize  and  detain  them  if  engaged  in  contra- 
band trade,  or  violating  a  blockade ;  and  to  capture  and  carry  into 
port  neutral  vessels,  which  may  be  transporting  the  property  of  his 
enemy,  for  the  purpose  of  condemning  such  property  ;  —  it  would 
be  utterly  inconsistent  with  these  rights  to  allow  the  neutral  to 
resist  by  force,  or  be  retaken  by  her  crew,  whenever  they  might 
have  opportunity  to  overpower  the  officers  and  men  of  the  bellige- 
rent, in  whose  custody  she  might  be  placed.     General  principles 


1  Mayne  v.  Walter,  3  Doug.  79.  2  Chapter  2. 

39* 


462  EXPRESS    WARRANTIES,   STIPULATIONS,   ETC.       [CHAP.  IX. 

of  policy  require  that  in  such  cases  the  neutral  should  submit  and 
rely  upon  the  justice  of  the  tribunals  of  the  belligerent  nation."  ^ 

Similar  language  is  held  in  many  cases,  from  which  it  appears 
plainly  that  the  power  to  resist,  or  opportunity  to  escape,  does  not 
lessen  the  obligations  of  a  neutral  to  submit  to  search.  This  seems 
to  be  the  principle  to  which  the  preceding,  and  other  like  observa- 
tions, are  applicable  ;  for,  it  can  hardly  be  supposed  that  the  neu- 
tral is  bound  to  submit  to  all  acts  done  by  a  belligerent,  under  a 
pretence  of  exercising  a  right  of  search,  though  the  belligerent 
make  known  his  character  and  produce  his  commission.  It  is  a 
general  principle,  that  the  unlawful  exercise  by  force  of  a  legal 
right,  will  justify  a  resistance.  As  to  the  discretion  of  the  parties, 
each  has  the  same,  and  neither  can  alter  the  rights,  powers,  or 
obligations  of  the  other,  by  the  construction  he  puts  upon  them. 
The  belligerent  uses  his  discretion  as  to  the  manner  of  searching, 
and  the  neutral  as  to  the  right  or  expediency  of  resisting  or  escap- 
ing ;  but  still  it  remains  for  the  proper  tribunals  to  determine  what 
were,  in  truih,  the  rights  and  obligations  of  the  parties. 

822.  The  right  of  visit  and  search  includes  that  of  sending 
vessels  into  port  for  examination  ;  and  a  rescue  of,  or  attempt  to 
rescue,  a  neutral  vessel  sent  in  for  examination  by  an  authorized 
belligerent  captor,  is  a  breach  of  this  warranty."^ 

823.  If  a  belligerent  exercises  the  right  of  search  illegally,  and 
outrageously,  it  is  not  a  breach  of  the  warranty  of  neutrality  to 
make  resistance. 

It  was  so  decided  in  case  of  an  American  vessel  captured  by  a 
lugger  in  the  English  Channel,  near  the  French  coast.  The  prize 
crew  were  proceeding  with  the  vessel  towards  a  French  port,  when 
the  American  crew  rose  upon  them  and  regained  possession  of  the 
vessel,  but  were  obliged  to  abandon  her,  in  their  boat,  on  the  lug- 
ger's again  appearing  in  sight  and  giving  chase  to  them.  The 
lugger  had  neither  shown  any  colors  nor  made  known  the  author- 
ity by  which  a  right  of  search  was  demanded.     This  was  held  to 


1  Robinson  r.  Jones,  8  Mass.  R.53G.     340;  The  Dispatch,  3  id.  278;  Gar- 

2  Wilcocks   V.   Union   Ins.    Co.,  2     rels  v  Kensington,  8  T.  R.  230. 
Binn.  TilA  ;  The  Maria,  1  Chr.  Rob. 


SECT.  Vlir.]       NEUTRALITY    OF    TRADE    AND    CONDUCT.  463 

be  a  sufficient  justification  of  resistance.  Mr.  Justice  Jackson, 
giving  the  opinion  of  the  court,  said,  that  to  refuse  the  right  of 
resistance  and  escape  in  such  case  "  would  expose  every  neutral 
ship  to  capture  by  pirates.  The  master  of  the  neutral  vessel  had 
no  evidence  that  the  capturing  ship  was  a  French  commissioned 
cruiser.  The  captors  might  have  plundered  the  ship  and  sunk 
her,  and  neither  the  owners  nor  the  government  of  the  United 
States  could  demand  indemnity  against  the  French  government."  ^ 
Chief  Justice  Tilghman  instructed  the  jury,  in  regard  to  a  neu- 
tral vessel  captured  and  sent  in  for  adjudication,  that  it  was  not 
the  duty  of  her  crew  to  navigate  her.^ 

824.  It  is  not  a  breach  of  the  warranty  of  the  neutral  character 
of  the  ship,  that  she  carries  a  belligerent  cargo.^ 

The  warranty  of  neutrality  of  goods  is  not  forfeited  by  the  cir- 
cumstance of  their  being  transported  on  board  of  on  unarmed  belli- 
gerent ship. 

Chief  Justice  Marshall  says:  "The  rule  that  the  goods  of  an 
enemy  found  in  the  vessel  of  a  friend  are  a  prize  of  war,  and  that 
the  goods  of  a  friend  in  the  vessel  of  an  enemy  are  to  be  restored, 
is  believed  to  be  a  part  of  the  original  law  of  nations  as  generally, 
perhaps  universally,  acknowledged.  It  has  been  fully  and  unequi- 
vocally recognized  by  the  United  States.  And  it  was  held,  that 
the  provision  of  the  treaty  of  the  United  States  with  Spain,  that 
'  free  ships  should  make  free  goods,'  was  not  a  ground  for  consider- 
ing all  goods  that  were  claimed  as  Spanish,  but  found  on  board  of 
an  armed  hostile  vessel,  to  be,  for  this  reason  merely,  enemy  pro- 
perty." 

Mr.  Justice  Story  said  :  "The  general  doctrine,  though  formerly 
subject  to  many  learned  doubts,  is  now  incontrovertibly  established, 
that  neutral  goods  may  be  lawfully  put  on  board  of  an  enemy  ship, 
without  being  prize  of  war."  ^ 

825.  The  employment  of  a  neutral  vessel  in  a  service  auxiliary 


'  McLellan  v.  Maine  Fire  &  Mar.  3  Barker  v.  Blakes,  9  East,  283. 

Ins.  Co.,  12  Mass.  R  246.  4  The  Nereide,  9  Cranch,  388.    See 

2  Wilcocks  V.   Union   Ins.   Co.,  2  Kemble  v.  Klilnelander,  3  Johns.  Cas. 

Binn.  574.  130. 


464  EXPRESS   'WARRANTIES,   STIPULATIONS,   ETC.       [CIIAP.  IX. 

to  the  hostile  operations  of  a  belligerent,  forfeits  its  neutral  cha- 
racter.^ 

Such  is  the  effect,  according  to  Sir  Williaiti  Scott,  even  though 
the  master  may  engage  in  such  service  without  being  aware  of  its 
belligerent  character.^ 

But  this  is  an  extremely  stringent  construction  against  the  neu- 
tral. The  doctrine  surely  ought  to  be  limited  to  cases  where  the 
circumstances  constitute  a  ground  of  presumption  of  his  being 
aware  of  the  nature  of  the  service,  as  they  in  fact  did  in  those 
where  the  doctrine  is  stated.  That  is  to  say,  if  it  is  the  gross 
negligence  of  the  master  not  to  have  notice  of  the  belligerent  cha- 
racter of  the  service,  he  shall  be  presumed  to  know  it.  And  this 
limitation  of  the  doctrine  is  distinctly  recognized  by  the  same  emi- 
nent jurist,  in  the  case  of  conveyance  of  the  despatches  of  one  of 
the  belligerents. 3 

The  carrying  of  despatches  for  one  belligerent,  subjects  the  ves- 
sel to  capture  by  the  other.'*  Despatches  between  a  minister  of  a 
belligerent  in  a  neutral  country,  and  his  own  government,  are,  as 
far  as  the  master  of  the  neutral  ship  conveying  them  is  concerned, 
conclusively  presumed  not  to  be  of  a  belligerent  character,  and  so 
the  conveyance  of  them  is  no  breach  of  warranty  of  a  neutrality.^ 

826.  "If,"  says  Vattel,  "I  lay  siege  to  a  place,  or  only  form  a 
blockade,  I  have  a  right  to  hinder  any  one  from  entering,  and  to 
treat  as  an  enemy  any  one  who  attempts  to  enter  the  place,  or 
carry  any  thing  to  the  besieged,  without  my  leave."  ^ 

On  principle  it  might  well  be  questioned  whether  the  right  to 
confiscate  vessels  bound  to  a  blockaded  port  can  be  applied  to  a 
place  not  completely  invested  by  land  as  well  as  by  sea.     If  we 


1  Bentzon  v.  Boyle,  9  Cranch,  191;  Ilolbec,  G  id.  461,  n. ;  The  Susan, 
The  Carolina,  4  Chr.  Rob.  25G;  The  Ibid. 

Friendship,  G  id.  420.  4  The  Atalanta,  G  Chr.  Rob.  440. 

2  The  Orozcmbo,  G  Chr.  Rob.  430;  5  The  Caroline,  G  Chr.  Rob.  4G1 ; 
The  Friendship,  G  id.  420  ;  The  Susan,  The  Madison,  Edw.  224  ;  The  Com- 
C  id.  4G1,  n.  mercen,  1  Wheat.  382.     See  1  Duer, 

3  The  Caroline,  G   Chr.  Rob.  4G1  ;  Mar.  Ins.  459. 

The  Rapid,  Edw.  228 ;  The  Atalanta,  C  Lib.  3,  c.  7,  s.  117. 
G  Chr.  Rob.  440  ;   The    Constantia, 


SECT.  VIII.]       NEUTRALITY    OP    TRADE    AND    CONDUCT.  465 

examine  tlie  reasoning  on  which  is  founded  the  right  to  intercept 
and  confiscate  supphes  designed  for  a  blockaded  town,  it  will  be 
difficult  to  resist  tlie  conviction,  that  its  extension  to  towns  invested 
by  sea  only  is  an  unjustifiable  encroachment  on  the  rights  of  neu- 
trals." ^ 

According  to  the  usage  under  the  law  of  nations,  a  belligerent 
has  a  right  to  blockade  a  place  and  cut  off  all  communication  by 
sea,  although  it  is  not  at  the  same  time  besieged.  Notwithstand- 
ing the  late  practice  of  Great  Britain  and  France,  of  declaring 
ports  in  a  state  of  blockade,  although  not  actually  invested  by  an 
adequate  naval  force,  it  has  always  been  held  that,  to  constitute  a 
blockade,  so  as  legally  to  intercept  the  intercourse  of  neutrals,  a 
force  must  be  present  for  the  purpose  of  maintaining  the  blockade, 
suficient  to  cut  off  all  communication  by  sea,  or  to  make  an  entry 
imminently  dangerous.- 

Sir  William  Scott  says  :  "A  blockade  is  a  sort  of  circumvalla- 
tion,  by  which  all  correspondence  and  communication  is,  as  far  as 
human  force  can  effect  it,  to  be  entirely  cut  off."  ^  But  if  the 
blockading  squadron  is  occasionally  blown  off,  the  commander 
retaining  the  purpose  of  returning  to  the  station  immediately,  and 
using  due  diligence  for  this  purpose,  this  does  not  suspend  the 
blockade.* 

827.  A  blockade  is  properly  a  uniform  and  general  exclusion 
of  vessels  ;  if,  therefore,  some  vessels  are  permitted  to  pass,  others 
have  a  right  to  infer  that  the  blockade  is  raised.  Such  a  mode  of 
keeping  up  a  blockade  destroys  its  effect.  Accordingly,  as  there 
is  no  valid  blockade,  there  can  be  no  breach  of  blockade.'^ 

1  Letter  of  Chief  Justice  Marsball,  grass,  Vol  VII.  p.  241,  December  4, 
while  Secretary  of  State,  of  Septem-  1781;  The  Nancy,  1  Act.  R.  57;  The 
ber  20,  1800,  to  Mr.  King,  then  Ame-     Eagle,  1  id.  65. 

rican  Minister  at  London,  3  Wheat.  3  The  Vrow  Judith,  1  Chr.  Rob.  150. 

App.  p.  4.  See  The  Byfield,  Edw.  Ad.  R.  188. 

2  The  Betsey,  1  Chr.  Rob.  93  ;  Wil-  4  Radcliff  v.  United  Ins.  Co.,  7 
liams  V.  Smith,  2  Caines,  14 ;  Radclifl'  Johns.  38 ;  The  Frederick  Molkc,  1 
V.  United  Ins.  Co.,  7  Johns.  38  ;  The  Chr.  Rob.  8G  ;  The  Columbia,  id.  154 ; 
Henrick  and  Maria,  1  Chr.  Rob.  146 ;  The  Juffrow  Maria,  3  id.  147. 

The  Frederick  Molke,  1  id.  86  ;  The        5  The  Rolla,  6  Chr.  Rob.  364. 
Mercurius,  id.  80  ;   Journal  of  Con- 


466  EXPRESS    WARRANTIES,   STIPULATIONS,    ETC.      [CIIAP.  IX. 

828.  A  declaration  of  hloclcade  is  a  liigh  act  of  sovereignty, 
and  it  is  usually  made  directly  by  the  government  to  which  the 
blocJcading  squadron  belongs.  A  blockade  is,  however,  in  some 
cases  declared  by  an  officer  of  a  belligerent  power,  and  ivhen  so 
declared,  it  will  affect  the  subjects  of  neutral  nations  as  far  as  it 
is  authorized,  or  adopted  and  ratified,  by  his  government.  The 
implied  authority  in  this  respect  vested  in  a  naval  commander,  is 
much  greater  at  a  distance  from  his  government  than  when  he  is 
near  it.  To  affect  neutral  nations,  it  must  be  laid  by  competent 
authority,!  and  they  are  affected  only  in  the  extent  to  which  it  is 
so  laid.  If  any  marine  channel  is  left  free,  there  is  no  blockade 
in  respect  to  such  channel.^ 

829.  JSeutral  nations  are  not  affected  by  a  blockade  until  they 
have  notice  of  it.  This  notice  may  be  publicly  given  by  the  bel- 
ligerent to  the  neutral  government,  when  it  will  in  general  be  pre- 
sumed to  be  given  to  the  subjects  of  the  neutral  government ;  or 
it  may  be  given  directly  to  the  captain  or  owners  of  a  vessel.  It 
must  appear,  either  that  the  neutral  subject  has  had  notice  of  the 
blockade,  or  that  it  was  so  publicly  and  generally  known,  that  he 
must  be  presumed  to  have  a  knowledge  of  it.^  Those  persons 
who  are  in  the  port  blockaded  are  always  presumed  to  have  notice 
of  the  blockade.'* 

A  blockade  is  prima  facie  presumed  to  continue  till  notification 
of  its  being  raised." 

If  a  blockading  squadron  is  driven  off  by  superior  force,  a  new 
notification  will  be  requisite,  if  the  blockade  is  resumed.*^ 

Notice   from  a  fleet  of  the   blockading   government,   that   the 


1  The  Ilenrick  and  Maria,  1  Chr.  lll,n. ;  The  Calypso,  2  id.  298;  The 
Rob.  14C  ;  The  Holla,  6  id.  364.  Mcrcurius,  1  id.  80;  The  Rolla,  6  id. 

2  The  Ocean,  3  Chr.  Rob.  297;  The  364  ;  The  Tutcla,  id.  177. 

Stcrt,  4  id.  G5  ;  The  Jonge  Tietcr,  id.  4  The  A^row  Judith,  1   Chr.  Rob. 

79.  150. 

3  The  Ilenrick  and  Maria,  1  Chr.  5  The  Neptunus,  1  Chr.  Rob.  170. 
Rob.  140  ;  RadchlTi'.  United  Ins.  Co.,  6  The  HolTnung,  6  Chr.  Rob.  112; 
7  Johns.  38 ;  9  id.  277  ;  The  Neptunus,  The  Tripeten,  id.  65. 

2  Chr.  Rob.  110 ;  The  Adelaide,  2  id. 


SECT.  VIII.]       NEUTRALITY    OF   TRADE   AND    CONDUCT.  467 

blockade  is  raised,  though  erroneous,  cancels  the  prior  notice  of 
the  blockade,  and  justifies  proceeding  for  the  port.' 

830.  If  the  assured  has  actual  or  constructive  notice  of  a  block- 
ade declared  upon  sufficient  authority,  and  maintained  by  an  ade- 
quate force,  an  attempt  on  his  part  to  carry  property  loarrantcd 
neutral  to  or  from  the  blockaded  port,  is  a  violation  of  the  block- 
ade and  a  breach  of  the  warranty?  A  neutral  vessel  that  had 
entered  the  port  before  the  blockade,  may  come  out  in  ballast,^  or 
with  a  cargo  taken  on  board  before  the  blockade  began,*  but  not 
with  one  taken  on  board  after  notice  of  the  blockade.^ 

So  a  ship  may  bring  away  from  a  blockaded  port  the  cargo  im- 
ported in  her  before  the  declaration  of  blockade,  and  still  remain- 
ing on  board.  A  vessel  purchased  at  the  blockaded  port  after  the 
declaration  of  blockade,  cannot  be  cleared  out  from  the  port  while 
the  blockade  continues.^ 

Leaving  such  port  is  justifiable  in  case  of  war  impending  be- 
tween the  country  to  which  it  belongs  and  that  of  the  vessel  and 
owners  of  the  cargo.'^ 

831.  Sir  William  Scott  says,  "If  a  vessel  sail  for  a  blockaded 
port,  after  having  received  notification  of  the  blockade,  tlie  act  of 
sailing  is  to  be  considered  as  a  breach  of  the  blockade."^     But 


1  The  Neptunus,  2  Clir.  Kob.  110.  Manchester,  2  id.  60  ;  The  Maria,  5 
Article  18  of  the  treaty  of  1794,  be-  Chr.  Rob.  365. 

tween  the  United  States  and  Great  ^  The  Frederick  Molke,  1  Chr.  Rob. 

Britain,  recognizes  the  doctrine  in  the  86. 

text,  by  providing  that  "a  vessel  sail-  *  Oldden  v.  M'Chesney,  5  Serg.  & 

ing  for  a  port,  not  knowing  the  same  Rawle,  71;  Olivera  v.  Union  Ins.  Co., 

to  be  blockaded,  may  be  turned  away,  3  Wheat.  183;  The  Vrow  Judith,  1 

but  shall  not  be  detained  unless,  after  Chr.  Rob.  150  ;  The  Juno,  2  id.  116  ; 

notice,   she    shall   again    attempt   to  The  Potsdam,  4  id.  89. 

enter."     The  Columbia,  1  Chr.  Rob.  ^  The  Neptunus,  1  Chr.  Rob.  1 70 ; 

154.  The  Rolla,  6  id.  364  ;    The   Comet, 

2  Bynk.  Q.  J.  P.  1.  1,  c.  4  &  11 ;  The  Edw.  Ad.  R.  32. 
AVelvaartVanPillaw,2Chr.Rob.l28;  6  The   General   Hamilton,  6    Chr. 
Resolution  of  the  States  General  of  Rob.  61;  The  Vigilantia,  id.  122. 
Holland,  1630,  3  Chr.  Rob.  326,  n.;  "?  The  Dree  Vrienden,  1  Dod.  Ad. 
The  Exchange,  Edw.  Ad.  R.  39  ;  The  R.  269. 

Gute  Erwartung,  6  Chr.  Rob.  182;  8  The  Vrow  Johanna,  2  Chr.  Rob. 

The  Hare,  1  Act.  Ad.  R.  252  ;  The  109. 


468  EXPRESS    WARRANTIES,   STIPULATIONS,   ETC.     [CHAP.  IX. 

Chief  Justice  Marshall,  giving  the  opinion  of  the  court, ^  intimates, 
that  the  act  of  sailing  for  the  blockaded  port,  knowing  it  to  be 
such,  must  be  coupled  with  the  intention  of  entering  it,  in  order  to 
constitute  a  violation  of  the  blockade ;  for  a  vessel  might  sail  from 
the  United  States  for  a  blockaded  port  in  Europe,  after  notice  of 
the  blockade,  with  the  expectation  of  its  being  raised  before  her 
arrival,  and  with  the  intention  of  sailing  for  another  port  if  the 
blockade  should  not  be  raised.  So  it  was  held  by  Mr.  Justice 
Washington.^     Sir  William  Scott  has  given  a  similar  opinion.^ 

S32.  To  constitute  a  violation  of  blockade,  it  is  requisite,  not 
only  that  the  party  should  have  the  intention  to  do  so,  but  also  that 
he  should  do  some  act  in  pursuance  of  such  intention.^ 

"The  law  of  nations  does  not  admit  of  the  condemnation  of  a 
neutral  vessel  for  the  intention  to  enter  a  blockaded  port,  uncon- 
nected with  any  fact.  Lingering  about  the  place,  as  if  watching 
for  an  opportunity  to  sail  into  it,  or  the  single  circumstance  of  not 
making  immediately  for  some  other  port,  or  possibly  obstinate  and 
determined  declaration  of  a  resolution  to  break  the  blockade,  might 
be  evidence  of  an  attempt,  after  warning,  to  enter  a  blockaded 
port."  ° 

833.  Sailing  for  a  blockaded  port  with  intent  to  violate  the 
blockade  is  an  attempt  to  violate  it,  and  an  incipient  violation  of 
it,  and  is  treated  as  a  consummated  one,  if  the  blockade  exists, 
and  there  is  a  possibility  of  violating  it  at  the  time  of  the  capture 
of  the  vessel  for  such  violation,  while  pursuing  her  voyage  with 
such  intent.^ 

834.  Notice  of  a  blockade,  and  an  intention  of  the  master  to 
violate  it,  and  his  acts  thereupon,  are  immaterial,  if  there  is  not, 
at  the  time  of  his  entering  or  of  his  capture,  any  then  subsisting 
blockade,  though  there  may  have  previously  been  one  irregularly 


1  4  Cranch,  190  ;  and  see  Maryland  "*  Calhoun  r.  Ins.  Co.  of  Pennsyl- 
Ins.  Co.  r.  Wood,  6  id.  29.  vania,  1  Binn.  293. 

2  Sperry   v.   Delaware  Ins.  Co.,  2  5  Fitzsimnions  v.  Newport  Ins.  Co., 
Wash.  C.  C.  R.  213.  4  Cranch,  185;  and  see  cases  supra 

3  The   Betsey,  1   Chr.    Rob.    332 ;  and  infra. 

The  Shepherdess,  5  id.  202.  6  See  cases  supra  and  infra. 


SECT.  VIII.]      NEUTKALITY   OF   TRADE   AND    CONDUCT.  469 

maintained,  and  then  intended  to  be  resumed  ;^  or  one  not  extend- 
ing to  the  place  of  entry .^ 

835.  So,  if  the  intent  to  violate  a  hlockade  has  been  renounced, 
and  the  ship  is  no  longer  pursuing  the  course  to  the  blockaded 
port  at  the  time  of  her  being  captured,  thei-e  ceases  to  he  any 
violation  of  the  hlocJcade,  and  the  fact  of  the  previous  incipient 
violation  is  cancelled.*' 

836.  In  case  of  there  being  evidence  on  board  of  the  ship,  that 
the  owner  of  the  whole  or  a  part  of  the  cargo  did  not  intend  to 
-iiiolate  a  blockade,  his  goods  icill  not  be  condemned,  though  the 
ship  and  other  goods,  if  any,  may  be  so."* 

837.  It  is  a  violation  of  blockade  to  sail  with  intent  to  pro- 
ceed to  the  mouth  of  the  harbor,  for  the  purpose  of  inquiring 
whether  the  blocJcade  is  raised.^ 

The  court  intimates,  that  sailing  from  the  United  States  for  a 
European  port,  known  to  be  blockaded,  with  similar  instructions, 
would  be  a  breach  of  the  blockade.*^ 

838.  An  agreement  by  charter-party  to  sail  to  a  port,  which 
is  afterwards  blockaded,  does  not  justify  the  captain's  proceeding 
on  the  voyage,  after  notification  of  the  blocJcadeJ'  And  Sir  Wil- 
liam Scott  held  it  to  be  a  breach  of  blockade  in  a  captain  not  to 
change  his  course  for  a  different  port,  after  being  warned  that  the 
port  of  destination  was  blockaded.^  But  it  appears,  from  the  deci- 
sions of  the  same  judge  cited  above,  that  the  construction  to  be 
put  upon  this  act  of  the  captain  ought  to  depend  on  his  distance 
from  the  port  of  destination  when  he  receives  the  notification,  and 

1  Williams  v.  Smitb,  2  Caines,  13;  GO;  The  James  Cook,  Edw.  Ad.  R. 
Radcliff  u.  United  Ins.  Co.  7  Johns.  38.  2G1. 

2  The  Henrick  and  Maria,  1  Chr.  ^  The  Juno,  2  Chr.  Rob.  116 ;  The 
Rob.  146.  HofTnung,  id.  162  ;  and  see  Maryland 

3  The  James  Cook,  Edw.  Ad.  R.  Ins.  Co.  v.  Woods,  6  Crancli,  29. 
261;  The  Trende  Sostre,  6  Chr.  Rob.  ^  The  Spes  and  The  Irene,  5  Chr. 
390,  n. ;  The  Licette,  6  id.  387  ;  The  Rob.  76  ;  The  Posten,  1  id.  335. 
Imina,  3  id.  167.  7  The  Tutela,  6  Chr.  Rob.  177. 

4  The  Mercurius,  1  Chr.  Rob.  80  ;  8  The  Adonis,  5  Chr.  Rob.  256 ;  The 
The  Exchange,  Edw.  Ad.  R.  39 ;  The  Shepherdess,  id.  262  ;  The  Apollo,  id. 
Neptunus,  3  Chr.  Rob.  1 73  ;  The  Ade-  286. 

laide,  id.  281 ;  The  Manchester,  2  Act. 
VOL.  I,  40 


470  EXPRESS    WARRANTIES,    STIPULATIONS,   ETC.      [CIIAP.  IX. 

Other  circumstances  showing  whether  he  continues  on  his  course 
with  the  purpose  of  violating  the  blockade,  or  with  the  expecta- 
tion of  its  being  raised,  and  the  intention  of  waiting  at  some  other 
port  for  that  event. 

839.  It  is  a  violation  of  blockade  to  sail  for  the  blockaded 
port  with  instructions  and  intent  to  proceed  and  enter,  if  the 
winds  should  be  such  as  to  blow  off  the  blockading  squadron.^ 

840.  Where  the  vessel  sails  for  a  distant  port,  known  to  be 
blockaded,  but  with  a  prior  destination  to  another  port  at  a  pro- 
per distance  from  the  blockaded  one,  to  learn  whether  the  block- 
ade has  ceased,  and  with  a  bona  fide  expectation  that  it  may  have 
ceased,  and  another  destination  in  such  case,  this  is  not  a  viola- 
tion of  the  blockade.^ 

Sir  William  Scott  said  :  "  The  design  was  to  seize  the  oppor- 
tunity of  entering  whilst  the  winds  kept  the  blockading  squadron 
at  a  distance.  Under  these  circumstances,  I  have  no  hesitation 
in  saying  that  the  blockade  was  broken."  He  accordingly  con- 
demned the  vessel  and  cargo;  and  his  judgment  was  confirmed  on 
appeal. 

An  action  was  tried  in  the  Supreme  Court  of  New  York,  upon 
a  policy  by  which  the  cargo  of  The  Columbia  was  insured  and 
warranted  American.  Justices  RadclifF,  Kent,  and  Benson  con- 
curred in  the  opinion  of  Sir  William  Scott,  and  thought  the  war- 
ranty had  not  been  complied  with,  and  the  judgment  was  in  con- 
formity to  their  opinion.  Chief  Justice  Lansing  dissented,  upon 
the  ground  that,  by  the  treaty  with  Great  Britain,  the  master  was 
authorized  knowingly  to  make  one  attempt  to  enter.^  The  Court 
of  Appeals  reversed  the  judgment,  upon  the  ground  that  the  inten- 
tion of  the  master  was  to  inquire  whether  the  blockade  was  raised.* 
The  decision  of  Sir  William  Scott  and  of  the  Supreme  Court  of 

1  Tlic  Columbia,  1  Clir.  Hob.  151.       tion   upon  the  treaty,  agreeing  with 

2  Naylor  v.  Taylor,  9  B.  &  C,  718 ;  that  of  Sir  William  Scott,  4  Craneh, 
Tiie  Shepherdess,  5  Chr.  Rob.  202;     200. 

Winder  v.  Wise,  1  1).  &  L.  240.  4  i  Gaines's  Cas.  vii. ;  2  Johns.  Cas. 

3  Vos  r.  United  Ins.  Co.,  2  Johns.  4C0.  Sec  also  Liotard  r.  Graves,  3 
Cas.  180.    The  Sui)remc  Court  of  the     Gaines,  226. 

United  States  put  a  diiTcrent  construe- 


SECT.  VIII.]      NEUTRALITY   OF   TRADE    AND    CONDUCT.  471 

New  York  seems  to  Iiave  been  plainly  right,  according  to  the  con- 
struction which  they  put  upon  the  evidence,  as  proving  an  inten- 
tion, on  the  part  of  the  master,  to  violate  the  blockade.  So  the 
decision  in  the  Court  of  Appeals  was  right,  upon  its  construction 
of  the  evidence,  as  not  proving  such  an  intention.  The  discre- 
pancy is  in  the  construction  of  the  testimony,  and  that  of  Sir  Wil- 
liam Scott  and  the  Supreme  Court  of  New  York  certainly  seems 
to  be  the  obvious  one.^ 

841.  Lingering  near  a  blockaded  ]Jort,  as  well  as  continuing 
on  the  course  towards  it,  after  notification,  where  it  shows  an  inten- 
tion to  enter  the  port,  is  a  breach  of  the  blockade.^ 

842.  It  is  not  a  violation  of  blockade  to  enter  or  depart  from 
a  port  ivith  the  permission  of  the  officers  of  tlie  blockading  squa- 
dron, and  the  vessel  so  entering  may  clear  out  with  a  cargo.^  But 
where  such  permission  was  given  by  a  belligerent  cruiser  to  a  neu- 
tral to  enter  an  interdicted  port,  through  an  erroneous  construction 
of  the  interdiction,  the  entry  was  held  not  to  be  justified.'^ 

843.  It  is  not  a  breach  of  blockade  to  enter  the  blockaded  port 
from  necessity  in  distress,  when  no  other  port  can  be  made.^  So 
a  ship  may  visit  a  blockaded  port  by  the  license  of  the  govern- 
ment to  which  the  blockading  squadron  belongs,  and  such  license 
is  construed  liberally  in  favor  of  the  neutral. 

844.  Nor  is  it  a  violation  of  blockade  by  a  neutral  to  purchase 
goods  at  the  blockaded  seaport,  and  transport  them  inland  to 
another  port  not  blockaded,  and  export  them  thence  ;  "  ^  or  to  trans- 
port goods  by  inland  navigation  to  the  blockaded  seaport." 

845.  Where  loss  ensues  by  reason  of  neglect  in  claiming  the 


1  See,  on  this  subject,  1  Duer,  Ins.  147  ;  The  Henricns,  id.  159,  n. ;  The 
691,  and  note  to  the  case  of  Oh  vera  v.  Vrow  Barbara,  id.  158,  n. ;  Olddan  v. 
Union  Ins.  Co.,  3  Wheat.  183,  which  M'Chesney,  5  Serg.  &  Rawle,  71. 

is  cited  and  ably  commented  upon  by        ^  The  Courier,  Edw.  Ad.  R.  249. 
Mr.  Duer.  5  The  Fortuna,  5  Chr.  Rob.  27 ;  The 

2  The  Ehzabeth,  Edw.  198;  The  Charlotte,  Edw.  352;  The  Hurtige 
Arthur,  id.  202;  The  Little  William,  Ilane,  2  Chr.  Rob.  124. 

Act.  Ad.  R.  141;  The  Irene,  5  Chr.        6  The  Ocean,  3  Chr.  Rob.  297. 
Rob.  76 ;  The  Neutralitet,  6  id.  30.  7  The  Stert,  4  Chr.  Rob.  65  ;  The 

3  The  Juffrow  Maria,  3  Chr.  Rob.  Jonge  Pieter,  id.  79. 


472  EXPRESS   WARRANTIES,    STIPULATIONS,   ETC.      [CHAP.  IX. 

property  insured  with  warranty  of  neutrality,  on  the  same  being 
captured,  the  liability  of  underwriters  is  determined  as  in  other 
cases  of  question  as  to  negligence,  misconduct,  or  mistake  of  the 
assured  or  his  agents. ^ 


SECTION    IX.        PARTICULAR    WARRANTIES    AND    CONDITIONS. 

846.  Insurance  upon  '•laivful goods"  is  not  unfrequent. 

This  warranty  was  held  in  New  York  to  be  satisfied,  though  the 
goods  were  contraband  of  war;-  which  construction,  by  confining 
the  restriction  to  unlawful  goods,  renders  it  null,  since  such  are  so, 
as  we  have  seen,^  without  this  clause. 

847.  A  Xi'arraniy  that  a  vessel  "shall  have  no  contraland 
goods  on  hoard,"  means  contraland  of  war  :  and  not  illicit  trade 
at  the  port  of  destination,  where  it  is  well  understood  that  the 
trade  is  illicit  at  such  port.^ 

848.  Warranty  that  the  ship  " icas  iccU"  on  a  certain  day  is 
satisfied  if  she  ivas  so  any  time  on  that  day/> 

849.  Under  the  provision  contained  in  many  forms  of  policy, 
called  "the  rotten  clause,"  that  "if  the  ship,  on  a  regular  survey, 
shall  he  declared  unseaworthy  by  reason  of  heing  rotten  or  un- 
sound," the  insurers  shall  he  discharged,  in  case  it  appears  from 
the  survey  that  the  decayed  state  of  the  vessel  is  the  reason  for  not 
repairing,  they  are  discharged,  though  it  may  have  sustained  damage 
by  the  perils  insured  against.  But  if  it  is  not  irreparable  by  reason 
merely  of  rottenness,  they  are  liable.^ 

1  See  c.  13,  s.  2;  also  the  remark  added  to  marine  policies.  1  Johns, 
of  Benson,  J.,  Vandenheuvelr. United     Cas.  15,  n. 

Ins.  Co.,  2  Johns.  Cas.  127,  at  p.  158  ;  3  Chap.  3,  s.  2. 

andof  Yates,  J.,  Gardere  r.  Columbian  ■*  Vandervoort  v.  Smith,  2  Caines, 

Ins.  Co.,  7  Johns.  514.  155. 

2  Seaton  v.  Low,  1  Johns.  Cas.  1 ;  5  Blackhurst  r.  Coekell,  3  T.  R.  3G0. 
Skidmore  i'.  Desdoity,  2  id.  77 ;  Rich-  6  IlafT  v.  Marine  Ins.  Co.,  8  Johns, 
ardson  v.  Maine  Fire  &  Mar.  Ins.  Co.,  163  ;  Griswold  r.  National  Ins.  Co.,  3 
G  Mass.  II.  102.  In  consequence  of  Cowen,  96;  Watson  I'.Ins.  Co.  of  North 
the  first  of  these  decisions,  the  clause  America,  2  Wash.  C.  C.  R.  152,  480; 
already  mentioned,  supra.  No.  42,  ex-  Armroyd  v.  Union  Ins.  Co.,  2  BInn. 
cepting  loss  of  contraband  goods,  was  394  ;  Marine  Ins.  Co.  of  Alexandria 


SECT.  IX.]      PARTICULAR  WARRANTIES   AND   CONDITIONS.  473 

Though  some  of  the  decisions  on  this  clause  are  somewhat  in- 
distinct, I  understand  them  to  result  on  the  whole  to  the  doctrine 
above  stated,  and  which  is  the  most  obvious  iniport  of  the  stipula- 
tion ;  namely,  that  if  the  irreparableness  and  innavigability  of  the 
vessel  are  attributed  by  the  survey  to  rottenness,  independently 
of  the  damage  by  the  perils  insured  against,  the  insurers  are 
discharged  from  the  loss  ;  but  if  to  both  causes,  they  are  not  dis- 
charged. 

The  import  of  the  whole  survey  taken  together  is  to  be  regarded, 
and  not  merely  that  of  particular  expressions.^  If  divers  surveys 
are  made,  they  are  to  be  taken  together.^ 

850.  The  warranty  against  rottenness  relates  to  the  time  when 
the  survey  is  made. 

851.  The  underwriters  are  discharged  at  whatever  time  the 
decay  may  have  commenced,  and  whether  the  ship  was  or  was  not 
unseaworthy  by  reason  of  rottenness  when  the  risk  commenced.^ 

852.  In  respect  to  ivhat  constitutes  a  regular  survey,  one  made 
under  the  order  of  a  court  having  jurisdiction  of  the  proceeding  is 
such,  as  far  as  the  authority  to  order  it  is  concerned  : 

So  also  one  made  by  surveyors  appointed  by  the  American  con- 
sul in  a  foreign  port :  ^ 

So  one  by  surveyors  appointed  under  a  law  of  a  State,  as  long 
as  there  is  no  act  of  Congress  on  the  subject :  ^ 

So  also  one  by  surveyors  appointed  by  the  master,  where,  under 
the  circumstances,  such  an  appointment  is  a  sound  exercise  of  dis- 
cretion on  his  part :  ^ 

V.  Wilson,  3  Cranch,  187;  Door  v.  3  Dorr  r.  Pacific  Ins.  Co.,  7  Wheat. 

Pacific  Ins.  Co.,  7  Wheat.  581  ;  Bran-  581  ;   Rogers   v.  Niagara  Ins.  Co.  2 

degee  v.  National  Ins.  Co.,  20  Johns.  Hall's  R.  86. 

328 ;  Janney  v.  Columbian  Ins.  Co.,  10  "*  Innes  v.  Alliance  Ins.  Co.,  1  Sandf. 

Wheat.  411;  Innes  v.  Alliance  Mut.  R.   Sup.   Ct.  of  City  of  New  York, 

Ins.  Co.,  1  Sandf.  R.  Sup.  Ct.  of  City  310. 

of  New  York,  310.  5  Janney  v.  Columbia  Ins.  Co.,  10 

1  Bi'andegee  v.  National  Ins.  Co.  Wheat.  411. 

and  Innes  v.  Alliance  Mut.  Ins.  Co.,        ^  Polleys  v.  Ocean  Ins.  Co.,  2  Shep- 
ut  supra.  ley's  (Maine)  R.  141. 

2  Innes  v.  Alliance  Mut.  Ins.  Co., 
ut  supra. 

40* 


474  EXPRESS   WARRANTIES,    STIPULATIONS,   ETC.      [CHAP.  IX. 

So  the  assent  of  the  master  to  a  survey  is  ground  of  presump- 
tion of  its  being  regular.^ 

There  may,  however,,  doubtless  be  irregularities  in  a  survey  by 
surveyors  duly  appointed. 

853.  According  to  the  decision  of  the  Supreme  Court  of  the 
United  States,  the  report  of  surveyors  on  a  regular  survey,  that  a 
vessel  is  irreparable  and  innavigable  by  reason  of  decay,  is  con- 
clusive of  the  fact  under  this  stipulation.'^ 

854.  It  is  not  essential  that  the  survey  should  he  during  the 
voyage  ;  it  is  sufficient  if  it  is  made  within  a  reasonable  time  after 
the  termination  of  the  voyage.^ 

855.  The  stipidation  to  claim  property  not  Spanish  as  being 
so,  is  legale 

856.  Under  an  agreement  of  the  assured  to  prosecute  a  claim 
for  the  property  till  final  condemnation  in  the  High  Court  of  Ad- 
miralty, or  acquittal,  the  insurers  to  "contribute  to  the  expenses" 
proportionably,  he  must  commence  the  prosecution  of  his  appeal 
from  the  decree  of  condemnation  in  the  inferior  tribunal,  and  is 
not  justified  in  neglecting  to  do  so  by  the  refusal  of  the  insurers 
to  malce  advances  for  the  expense.^ 

857.  Under  a  stipulation  that  a  policy  on  a  ship  and  cargo 
shall  be  cancelled  "  should  the  vessel  and  cargo  be  insured  in  E.," 
the  insurance  icill  be  cancelled  on  only  one  of  the  interests,  if  only 
one  is  insured  in  E.  ^ 

858.  A.  stipulation  in  a  respondentia  bond,  that,  if  the  vessel 
shall  end  the  voyage  within  six  months,  the  casualties  of  the  seas 
excepted,  "having  on  board  the  stipuJatcd  amount  on  the  respect- 
ive passages  outward  and  homeward,"  the  bond  shall  become  abso- 
lute, is  held,  by  IMr.  Justice  Story,  to  be  a  stipulation  for  marine 

t 

1  Janncy  r.  Columbian  Ins.  Co.,  10  4  Coolidge  v.  Blake,  15  Mass.  R. 
Wheat.  411 ;  Dorr  v.  Tacific  Ins.  Co.,     429. 

7  Wheat.  581.  5  Thatcher  v.  Bellows,  13  Mass.  R. 

2  Dorr  V.  Taclfic  Ins.  Co.,  7  Wheat.     111. 

581.  6  Davis  v.  Boardman,  12  Mass.  R. 

3  Griawold  v.  National  Ins.  Co.,  3     80. 
Cowen,  98. 


SECT.  IX.]      PARTICULAR  WARRANTIES   AND   CONDITIONS.  475 

interest  on  the  amount  at  risJc  on  each  passage,  not  that  the  whole 
amount  shall  be  on  board  during  each  passage.^ 

859.  A  stijJidation,  that  ^^  orders  shall  he  given  not  to  cruise" 
is  not  satisfied  with  merely  implications  and  grounds  of  inference 
to  that  effect  in  the  instructions  to  the  master  ;  it  requires  explicit 
orders.^ 

860.  A  stipulation  for  "a  passport  in  the  usual  form,  from 
Admiral  S.,"  requires  one  for  the  whole  voyage  ;  but  a  majority 

,of  the  court  in  Connecticut  were  of  opinion,  that  one  for  "flour, 
and  other  dry  provisions,"  was  sufficient  to  cover  a  cargo  of  beef, 
pork,  and  candles,  such  a  license  being  in  the  usual  known  form 
granted  by  the  same  officer."' 

861.  In  some  cases  courts  have  appeared  to  construe  an  insur- 
ance upon  goods  ''from  the  lading  thereof  on  board  the  vessel," 
at  a  certain  place,  to  be  a  warranty  or  condition  that  the  goods 
shall  be  loaded  on  board  at  the  place  named. 

When  speaking  of  this  provision  of  the  policy  as  having  this 
character,  and  not  as  merely  determining  the  commencement  of 
the  risk,  courts  seem  to  have  considered  the  object  of  it  to  be  to 
ascertain  the  state  of  the  goods,  so  as  to  secure  the  underwriter 
from  liability  for  previous  losses.^  But  this  clause  has  been  con- 
sidered in  other  cases  as  merely  a  part  of  the  description  of  the 
subject  and  the  risk. 

862.  Under  a  policy  on  a  vessel  from  C.  to  the  coast  of  Africa, 
and  during  her  stay  there  and  back,  "  loarranted  not  to  remain  on 
the  coast  more  than  four  months,"  the  court  was  of  opinion,  that 
the  four  months  began  after  the  vessel  had  arrived  and  been  safely 
moored  twenty-four  hours  on  the  coast,  and  that  she  had  been  so 
moored  twenty-four  hours,  though  she  had  before  lost  her  best 


1  Franklin  Ins.  Co.  v.  Lord,  4  Ma-  vention  of  a  minister  of  a  neutral 
son,  248.  See,  to  the  same  effect,  nation,  to  a  port  of  -which  the  vessel 
Emerigon  on  Maritime  Loans,  trans-  was  destined. 

lated  by  Hall,  p.  149.  4  Spitta  v.  Woodman,  2  Taunt.  416  ; 

2  Ogden  V.  Ash,  1  Dall.  162.  S.  C,  16  East,  188,  n.;   Nonnen  v. 

3  Bulkley  v.  Derby  Fishing  Co.,  1  Reid,  and  same  v.  Kettlewell,  16  East, 
Conn.  R.  571.     The  passport  in  this  176. 

case  was  obtained  through  the  inter- 


476  EXPRESS    WARRANTIES,    STIPULATIOXS,   ETC.      [CHAP.  IX. 

bower  anchor,  and  teas  moored  by  the  sniaJl  bower  :  and  accord- 
ingly, that  her  being  on  the  coast  more  than  four  months  from 
such  arrival  was  a  forfeiture  of  the  policy.^ 

863.  Under  a  rule  of  a  mutual  insurance  association,  having 
the  force  of  a  stijjulation,  that,  unless  the  orders  given  for  stores 
a7id  rejpairs  by  the  managing  committee  are  complied  with,  "the 
shijp  shall  not  be  insured, ^^  the  policy  is  forfeited  by  non-compli- 
ance.^ 

864.  ji  provision  in  a  policy,  that,  if  notice  of  other  insur- 
ance by  the  assured  on  the  same  subject,  is  not  given,  the  policy 
shall  be  void,  applies  to  other  subsequent,  as  well  as  prior  insur- 
ance ;  but  if  the  subsequent  other  insurance  is  void  by  reason  of 
not  giving  notice  of  the  prior  insurance,  the  latter  will  remain 
valid.^ 

Under  the  provision  that  the  policy  shall  be  void  if  the  assured 
shall  insure  the  same  property,  or,  "  any  property  connected  with 
it,  at  any  other  ofEce,"  a  policy  on  a  building  is  not  made  void  by 
a  subsequent  insurance  at  another  ofrice  on  goods  contained  in  it.'* 

865.  A  stipulation  for  submitting  disputes  which  may  arise  in 
future  on  a  contract,  to  arbitrators,  has,  heretofore,  been  held  not 
to  be  binding  to  the  effect  of  defeating  the  right  of  action  upon  it 
without  any  previous  offer  of  arbitration.^ 

A  judgment  of  the  English  Couil  of  Exchequer  Chamber  aban- 
dons the  ground  on  which  the  jurisprudence  on  this  subject  had  been 
put.  It  was  provided  by  a  policy  of  a  mutual  insurance  company 
that  '•'  the  sun)  to  be  paid  to  any  suffering  member  should,  in  the  first 
instance,  be  ascertained  and  settled  by  the  committee,  and  if  a  differ- 
ence should  arise  between  the  committee  and  the  suffering  member 
relative  to  the  settling  of  any  loss,  arbitrators  should  be  appointed 
"  in  the  manner  specified,"  who  should  decide  upon  the  claims  and 
matters  in  dispute,"  and  that  "no  member,  who  should  refuse  to  ac- 

1  Alarden  v.  South  Carolina  Ins.  Co.,  4  Jones  v.  Maine  Mut.  Fire  Ins.  Co., 
1  Const.  R.  (S.  Car.)  200.  6  Shepley's  (Maine)  R  155. 

2  Stewart   v.  Wilson,  12  i\Iecs.  &        5  gupra,  No.  53,  n. 
Wels.  11. 

3  Stacey   v.   Franklin    Ins.   Co.,  2 
Watts  &  Serg.  506. 


SECT.  IX.]      PARTICULAR   WARRANTIES   AND   CONDITIONS.  477 

cept  the  amount  settled  by  the  committee  in  full  satisfaction,  should 
be  entitled  to  maintain  any  action  at  law  or  suit  in  equity  on  his 
policy,  until  the  matters  in  dispute  should  have  been  referred  to  and 
decided  by  the  arbitrators,  and  then  only  for  such  sum  as  said  arbi- 
trators should  award  ;  and  the  obtaining  the  decision  of  such  arbi- 
trators was  declared  to  be  a  condition  precedent  to  the  right  of  any 
member  to  maintain  any  such  action  or  suit." 

It  was  held  by  Coleridge,  Wightman,  Maule,  Cresswell,  Wil- 
liams, Talfourd,  and  Crompton,  Justices  of  the  Court  of  Exchequer 
Chamber,  that  the  assured  could  not  bring  an  action  for  a  loss,  until 
the  amount  had  been  settled  by  the  committee,  and  "  if  he  was  not 
satisfied  with  their  decision,  until  there  had  been  an  award  by  arbi- 
trators." 1  The  court  does  not  distinctly  say  that  the  liability  of 
the  company  is  definitively  limited  to  the  amount  awarded  by  the 
arbitrators,  but  merely  that  the  exhibit  to  the  committee,  and,  in 
case  the  assured  being  dissatisfied  with  their  decision,  the  obtain- 
ing of  an  award,  are  conditions  precedent  to  the  right  to  bring  an 
action.  The  judgment  appears,  however,  to  put  the  award  upon 
the  same  footing  as  one  on  a  submission  of  a  claim  for  damages 
made  after  a  breach  of  a  contract,  and  it,  accordingly,  seems  to 
abandon  the  position  taken  in  the  prior  English  jurisprudence.^ 

The  anomaly  of  sanctioning  agreements  made  prospectively  for 
substituting  other  tribunals  for  those  established  by  law,  might  be 
avoided  by  permitting  either  party  to  demand,  before  some  legal 
tribunal,  a  specific  execution  of  this  agreement  for  an  arbitration, 
under  its  order,  and  subject  to  its  superintendence,  in  the  same 
manner  as  cases  are  referred  to  masters  in  chancery  ;  or  as  refer- 
ences to  arbitrators  are  made  under  a  rule  of  court.  Such  a  law 
would  specify  the  causes  of  civil  actions  in  respect  to  which  such 
prospective  agreements  for  arbitration  would  be  valid,  limiting  the 
operation  of  the  law  to  contracts  or  otherwise,  for  such  an  agree- 
ment would  hardly  be  made  binding  in  respect  to  misfeasances. 


1  Avery  r.  Scott,  22  Eng.  Law  &    Brown  &  Co.,  published  siffce  No.  58 
Eq.  R..  287,  Trinity  Term,  1853  ;  S.  C,     supra  was  printed.) 
20  Eng.  Law  &  Eq.  R.  (Press  of  Little,        ^  Supra,  No.  58,  and  note. 


478  EXPRESS   WARRANTIES,   STIPULATIONS,   ETC.      [cHAP.  IX. 


SECTION-    X.    WARRAXTIES,    CONDITIONS,    AND    STIPULATIONS    IN 
FIRE    POLICIES. 

S66.  A  condition  expressed  as  such  in  a  fire  policy,  if  not  com- 
plied with,  defeats  the  insurance  no  less  than  in  a  marine  one, 
whether  it  is  material  to  the  risk  or  not,  and  whether  the  non- 
compliance be  with  or  without  the  act  or  privity  of  the  assured.^ 

It  has  been  remarked  that  the  '"'strictness  and  nicety,"  as  to 
warranties,  adopted  in  the  trial  of  questions  on  policies  of  marine 
insurance,  are  not,  to  their  full  extent,  applicable  to  policies  "  made 
by  a  mutual  fire  insurance  company,  in  which  the  insurers  assume 
the  risk  on  the  knowledge  acquired  by  an  actual  survey  and  exa- 
mination made  by  themselves,  and  not  on  the  representations  made 
by  the  assured." ^  B^t  it  seems  to  be  very  questionable  whether 
there  is  any  such  distinction  in  the  construction  of  warranties  in 
different  descriptions  of  policies.  It  certainly  has  not  been  marked 
and  defined  in  the  cases. 

A  statement  of  a  fact,  whether  in  description  or  otherwise,  is 
considered  to  be  a  warranty  in  a  fire  policy  no  less  than  a  marine 
one,  where  the  fact  is  one  upon  which  the  parties  can  be  presumed 
to  have  proceeded  as  being  essential  in  making  the  contract.  But 
clauses  and  statements  intended  and  serving  merely  as  a  descrip- 
tion to  identify  the  subject  of  a  policy,  and  having  no  relation  to 
the  risk  or  rate  of  premium,  are  construed  in  fire,  as  in  marine  in- 
surance, not  to  constitute  conditions  on  which  the  validity  of  the 
contract  depends.^ 

866  a.  In  respect  to  what  constitutes  a  icarranty,  and  in  respect 
to  the  rules  of  construction,  there  does  not  appear  to  be  any  dis- 
tinction between  marine  and  fire  insurance."* 

'  Duncan  r.  Sun  Fire  Ins.  Co.,  G  Co.  of  Xew  Orleans,  3  Rob.  (La.)  R. 

Wend.  188  ;  Jefferson  Ins.  Co.  v.  Co-  384  ;  Egan  v.  iMut.  Ins.  Co.  of  Albany, 

theal,  7  id.  72;  Fowler  v.  ^Etna  Ins.  5  Dcnio,  326. 

Co.,  Id.  270;  Mcrriam  v.  Middlesex  2  pgr  Dorsey,  J.,  giving  the  opinion 

Ins.    Co.,    21    Pick.   102;   Holmes  r.  of  the  court. 

Charlcstown  Mat.  Fire  Ins.  Co.,  10  »  Supra,  No.  758,  7G9. 

Mete.  211;  Battaillc  r.  Merchants'  Ins.  ^  As  to  construction  of,  and  compli- 


SECT.  X.]  IN   FIRE   POLICIES.-  479 

Thus,  besides  stipulations  in  the  body  of  the  policy,  the  written 
answers  of  the  applicant,  to  inquiries  put  to  him  on  the  part  of  the 
underwriters,  indorsements,  the  charter  of  the  insurance  company, 
surveys  made  by  third  parties  and  presented  by  the  assured,  and 
other  documents  expressly  referred  to  in  the  policy  as  being  a  part 
of  it  or  being  warranties,  will  all  be  express  warranties,  represent- 
ations, or  mere  descriptions  serving  to  identify  the  subject  or  the 
risks,  according  to  the  same  rules  and  distinctions  as  in  marine 
insurance.! 

But  warranties,  in  many  cases,  as  well  as  representations,^  either 
directly  or  by  implication,  have  reference  to  the  future,  and  are 
promissory  and  continuing  in  their  character.  It  has  been  objected, 
that  holding  an  oral  promissory  representation  to  be  obligatory,  is 
making  it  equivalent  to  a  stipulation  in  the  policy.  This  is  not  so, 
excepting  in  cases  where  a  substantial  is  equivalent  to  a  strict 
compliance.  The  objection,  however,  if  it  were,  admitted  to  be 
valid  in  respect  to  a  representation,  has  no  application  to  express 
stipulations,  of  which  class  are  warranties,  since  such  stipulations 
most  frequently  have  reference  to  the  future.  This  is  especially 
true  in  fire  insurance,  since  it  would  be  absurd  to  construe  the 
written  statements  of  the  assured  respecting  the  use  made  of  a 
building,  the  precautions  taken  against  fire,  and  others  similar,  that 
they  only  stipulate  for  what  is  done  at  the  time  of  effecting  the 
policy  and  has  been  done  before.  In  such  cases,  the  nature  of  the 
subject  inquired  about  and  the  motive  of  the  inquiry,  must  deter- 
mine the  construction  of  the  answer  as  being  a  continuing  war- 
ranty or  not,  and  the  degree  of  strictness  requisite  to  a  compliance 
with  it.^ 

A  statement  in  respect  to  insurance  against  fire,  as  in  other 
insurance,  includes  whatever  is  evidently  implied  by  it ;  as  where, 
to  the  inquiry  wliat  buildings  there  were  within  ten  rods  of  that 
proposed  for  insurance,  the  applicant  replied,  "surrounded  by  space 

ance  with,  representations  and  war-  i  See  ut  supra. 

ranties,  see  supra,  No.  70,  71,  72,  485,  2  Qqq  supra,  No.  553. 

et  seq.  527,  553,  5G9,  575,  G08,  640,  3  Y\m  v.  Reid,  6  Mann.  &  Grang.  1, 

651,  652,  669,  670,  673,  674,  762  ;  and  cited  infra,  No.  874. 

infra,  871,  872,  892. 


480  EXPRESS   WARRANTIES,   STIPULATIONS,   ETC.     [CUAP.  IX. 

on  all  sides,"  this  was  held  to  make  it  a  condition  that  there  were 
no  buildings  within  the  specified  distance. ^ 

The  answer  to  the  inquiry  respecting  the  occupancy  of  a  build- 
ing being,  that  it  was  occupied  as  a  "tavern-house,"  was  held,  by 
the  Court  of  Appeals  of  New  York,  not  to  be  falsified  by  tempo- 
rarily keeping  a  fire  on  the  premises  to  try  out  grease.^ 

867.  In  respect  to  express  warranties  in  fire  policies,  as  well 
as  marine,  the  acts  of  agents  and  servants  are  imjmted  to  the 
assured.^ 

868.  Where  a  part  of  the  insured  subject,  and  a  proportional 
interest  in  the  policy,  are  duly  assigned,  within  the  rules  of  the 
company,  the  original  assured  becomes  a  third  party  in  respect  to 
such  part,  and  cannot,  unless  he  is  agent  of  the  assignee,  defeat 
the  contract,  any  more  than  any  third  party  could  do. 

Accordingly,  where  the  underwriters  had  assented  to  an  assign- 
ment of  a  policy  to  a  mortgagee  of  the  insured  premises,  whose 
mortgage  was  for  less  than  the  amount  insured,  the  Court  of  Ap- 
peals of  New  York  held,  that  a  subsequent  act  of  forfeiture  by 
the  original  assured,  affected  only  the  excess  over  the  mortgage, 
the  policy  still  remaining  valid,  and  an  action  being  sustained  upon 
it  in  the  names  of  the  original  assured  for  the  benefit  of  the  mort- 
gagee, to  the  amount  of  his  mortgage."* 

That  is  to  say,  the  effect  of  a  valid  assignment  of  a  part  of  the 
amount  insured  by  a  policy,  is  the  same  pro  tanto  as  an  assign- 
ment of  the  whole  policy  in  respect  to  the  whole  amount  insured.^ 

869.  7/1  a  fire  policy,  no  less  than  a  marine  one,  compliance 
with  an  absolute  allegation  of  a  fact,  or  an  absolute  promise  in 
the  policy  in  reference  to  the  rislc,  is  a  condition  on  which  the 


•  Jennings    v.    Chenango    County  1  Selden,  405  ;  S.  C,  7  Barb.  K.  570. 

Mut.  Ins.  Co.,  2  Denio,  R.  75.  The  Supreme  Court  of  New  York,  in 

2  Gates  V.  INIadison  County  Mut.  Ins.  this  case,  doubted  Carpenter  v.  Wash- 
Co.,  1  Selden,  4G9.  ington  Ins.  Co.  (of  Providence,)  16 

3  Duncan  v.  Sun  Fire  Ins.  Co.,  6  Peters's  Sup.  Ct.  R.  495.  Sec  as  to 
Wend.  488;  and  see  infra.  No.  1878,  distinct  assureds  in  the  same  policy, 
1879,  1880,  supra.  No.  93,  108,  395,  39G,  398. 

'1  Tillou  V.  Kingston  Mut.  Ins.  Co.,  ^  gee  supra.  No.  81. 


SECT.  X.]  IN  FIRE   POLICIES.  481 

liability  of  the  insurers,  from  the  lime  to  which  the  allegation  or 
promise  relates,  will  depend. 

870.  Where  an  express  warranty  in  fire,  no  less  than  in  marine 
insurance,  has  reference  to  the  commencement  of  the  risk,  as  it 
more  frequently  has,  and  provides  that  the  contract  shall  be  void 
in  case  of  non-compliance,  the  contract  is  forfeited  by  non-compli- 
ance, though  temporary :  ^ 

As  in  case  of  a  mill  "warranted  conformable  to  the  first  class," 
but  not  so  at  the  time  for  the  risk  to  commence,  though  afterwards 
made  so." 

The  rule  of  rigid  construction  may  favor  the  assured.  In  a 
policy  on  a  paper-mill  and  its  contents,  with  a  condition  requiring 
the  application  to  state  the  "  place  where  the  property  is  situated, 
of  v/hat  materials  it  is  composed,  its  dimensions,  how  constructed, 
and  for  what  occupied  ;  its  position  relative  to  other  buildings,  and 
distance  from  each,  if  less  than  ten  rods  ;  whether  it  is  encumbered, 
and,  if  the  applicant  has  a  less  estate  than  a  fee,  the  nature  of  his 
estate,"  —  the  clause  relative  to  the  distance  of  other  buildings 
was  held,  in  the  Supreme  Court  of  New  York,  to  have  reference 
to  the  insurance  on  the  mill,  and  not  to  that  on  its  contents.^ 

871.  Written  answers  by  the  assured  to  the  written  interroga- 
tories put  by  the  underwriters,  and  referred  to  in  the  'policy,  are 
part  of  the  written  contract,  to  the  effect  to  which,  and  for  the 

purpose  for  which,  they  are  so  referred  to,  whether  as  warranties, 
representations,  or  mere  descriptions  of  the  subject.'* 

872.  Stipulations,  though  having  the  character  of  warranties 
and  conditions,  are  to  he  reasonably  construed,  in  reference  to  the 
subject-matter,  and  not  captiously  or  literally.^ 

The  answers  are  not  unfrequently  referred  to  in  the  policy  by 


1  Vide  supra,  No.  764.  Farmers'  Ins.  &  Loan  Co.,  13  Wend. 

2  Newcastle  Fire  Ins.  Co.  v.  Mac-  92;  S.  C,  16  id.  481;  Delonguemere 
morran,  3  Dow,  255.  v.  Traders'  Ins.  Co.  2  Hall's  R.  589 ; 

3  Trench  v.  Chenango  County  Mut.  Liscom  v.  Boston  Mut.  Fire  Ins.  Co., 
Fire  Ins.  Co.,  7  Hill,  122.  See  also  9  Mete.  205.  See  supra,  No.  553, 
Pirn  t'.  Reid,  6  Mann.  &  Grang.  1.  569,  592,  640,  641. 

4  Houghton  V.  Manufacturers'  Mut.  5  See  supra,  No.  758,  769,  866. 
Fire  Ins.  Co.,  8  Mete.  114;  Snyder  v. 

VOL.    I.  41 


482  EXPRESS    ^yARRAXTIES,    STIPULATIONS,   ETC.     [CHAP.  IX. 

the  term  "representations,"  but  whether  so  referred  to  or  not,  if  a 
literal  compliance  does  not  correspond  to  the  object  of  the  inquiry, 
a  substantial  compliance  is  requisite.^ 

A  policy  on  a  granary  "and  a  kiln  for  drying  corn  attached," 
stipulated  that  the  trades  carried  on  in  the  premises  were  accu- 
rately described,  and  if  a  kiln  or  any  other  process  of  fire-heat 
were  used  and  not  noticed  in  the  policy,  the  contract  was  to  be 
void.  A  cargo  of  bark  having  been  sunk  near  the  premises,  the 
assured  allowed  the  bark  to  be  dried  at  his  kiln,  and  in  conse- 
quence the  granary  was  burnt  down.  The  use  of  the  kiln  for  this 
purpose  was  more  hazardous  than  the  use  of  it  for  drying  corn, 
but  it  was  held,  notwithstanding,  that  the  assured  had  a  right  to 
recover  for  the  loss,  as  the  description  of  the  kiln  in  the  policy  was 
not  considered  to  be  a  warranty  that  it  was  not  to  be  used  for  any 
other  purpose,  and  that  such  a  use  of  it  in  a  single  instance  was 
not  a  forfeiture  of  the  policy.^ 

The  same  policy  provided,  that,  "if  the  risk  to  which  the  pre- 
mises were  exposed  were  by  any  means  increased,  notice  was  to 
be  given  to  the  office,  and  allowed  by  indorsement  on  the  policy, 
or  otherwise  the  insurance  to  be  void."  The  use  of  the  kiln  for 
drying  bark,  as  already  stated,  was  ruled  not  to  be  such  an  in- 
crease of  the  risk  as  to  require  the  stipulated  notice  and  indorse- 
ment.^ 

Under  a  policy  on  the  machinery  of  a  cotton-mill,  a  condition 
that  the  mill  is  "worked  by  day  only,"  is  not  falsified  by  a  steam- 
engine  belonging  to  the  mill  and  gearing:  connected  with  it  being 
kept  in  motion  by  night,  the  mill  not  being  worked."* 

A  statement  that  an  insured  factory-building  has  iron  doors, 
does  not  require  that  those  opening  towards  adjoining  buildings 
are  to  be  kept  shut  during  working  hours. ^ 

A  representation  incorporated  into  the  policy  by  reference,  that 

'  Houghton  i\  Manufacturers'  Mut.  G70;  S.  C,  1  N.  &  P.  732;  and  see 

Fire  Ins.  Co.,  8  Mete.  114.  'Whitehead  f.  Price,  2  C.  M.  &  R. 

2  Shaw  V.  Robberd?,  6  Ad.  &  El.  44  7. 

75;  S.  C,  1  Neville  &  Perry,  279.  5  Scott   r.  Quebec  Fire  Ins.  Co., 

••  Ibid.  Stewart's  (Lower  Canada)  R.  147. 

4Mayall  v.  Mitford,  6  Ad.  &  El. 


SECT.  X.]  IN   FIRE   POLICIES.  483 

the  mills  are  examined  thirty  minutes  after  stopping  work,  applies 
equally  where  the  work  is  continued  beyond  the  usual  time.^ 

An  application  by  a  tenant  of  a  building  during  one  year,  for 
insurance  on  "his  building,"  was  held  in  New  York  to  be  a  good 
description.^ 

Describing  a  building  to  be  occupied  by  II.  as  a  dwelling-house, 
is  not  a  warranty  of  the  continuance  of  his  occupancy.^ 

A  representation  incorporated  with  the  policy  by  reference,  that 
the  assured  is  going  to  put  up  a  stove  for  burning  hard  coal,  is  not 
a  warranty  to  burn  no  other  fuel  in  the  stove.^ 

Assignment  by  one  to  another  joint  owner  and  assured  is  justly 
held  by  the  Supreme  Court  of  New  York  not  to  be  a  forfeiture  of 
the  condition  against  alienation,  as  it  does  not  come  within  the 
obvious  motives  of  the  condition.^ 

872  a.  The  inquiry  respecting  the  relative  situation  of  the 
building  proposed,  or  one  in  which  goods  are  proposed,  for  insur- 
ance, in  respect  to  other  buildings  and  distance  therefrom  within 
specified  limits,  must  be  truly  and  fully  answered. 

The  phraseology  of  a  fire  policy  is  usually  such  as  to  make  it  a 
condition  that  this  inquiry  is  correctly  and  fully  answered. 

It  may  be  such  as  to  limit  the  condition  to  insurance  upon  a 
building  in  distinction  from  an  insurance  on  its  contents.  The 
applicant  for  insurance  on  a  building  and  its  contents,  being  asked 
"where  the  property  proposed  for  insurance  was  situated,  of  what 
materials,  dimensions ;  the  chimneys,  fire-places,  stoves,  how  con- 
structed ;  relative  situation  as  to  other  buildings  within  ten  rods, 
and  how  occupied;"  the  answer  to  these  inquiries  was  held,  by 
the  Supreme  Court  of  New  York,  to  relate  wholly  to  the  insurance 
on  the  building,  on  the  ground  that  all  the  questions  apparently 
related  to  the  same  subject,  and  some  of  them  could  not  be  under- 
stood to  refer  to  its  contents.     The  insurance  on  the  buildine;  was 


1  Houghton  V.  Manufacturers'  Mut.  ^  O'Neil  v.  Buflfalo  Ins.  Co.,  3  Comst. 
Fire  Ins.  Co.,  8  Mete.  114.  123. 

2  Niblo  V.  North  American  Fire  Ins.  *  Tillou  v.  Kingston  Mut.  Ins.  Co., 
Co.,  1    Sandford's   New   York    City  7  Barb.  570. 

Sup.  Ct.  R.  551.  5  Ibid. 


484  EXPRESS    WARRANTIES,    STIPULATIONS,   ETC.      [CUAP.  IX. 

accordingly  held  to  be  forfeited,  and  that  on  the  contents  by  the 
same  policy  to  be  valid.^ 

In  other  cases,  where  the  demand  is  for  a  statement  of  all  the 
buildings  within  a  specified  distance,  the  validity  of  the  policy  has 
been  held  to  depend  upon  all  buildings  within  that  distance  being 
mentioned  in  the  answer,'^  notwithstanding  a  case^  which  has  a 
different  aspect,  and  gives  countenance  to  the  doctrine,  that  a 
policy  is  not  forfeited  by  the  omission  to  mention  buildings  which 
do  not  enhance  the  risk.'* 

It  has  been  held  by  a  majority  of  the  Court  of  Appeals  of  New 
York,  that  the  answer  of  the  applicant  that  there  is  no  building 
within  the  distance  inquired  about,  is  not  a  constructive  continuing 
condition  that  he  will  not  himself  erect  one,  and  that  his  omitting 
to  state,  in  reply  to  that  inquiry,  that  he  intends  and  has  begun 
preparations  to  erect  a  barn  within  the  specified  distance,  is  not  a 
breach  of  condition  or  a  misrepresentation  whereby  the  insurance 
is  defeated,  upon  the  ground  that  the  inquiries  put  to  the  applicant 
for  a  fire  policy  being  usually  quite  numerous  and  various,  he  is 
excused  from  making  any  statement  which  is  not  directly,  pointedly, 
and  literally  called  for.^  As  there  is  no  provision  in  the  policy 
bearing  upon  the  subject,  an  answer  that  the  space  in  question  is 
vacant,  might  not  be  construed  to  be  a  condition  that  the  assured 
should  not,  if  he  owned  it  himself,  make  such  use  of  it  as  is  usual 
in  the  vicinity.  But  the  omission  to  state,  in  reply  to  such  an 
inquiry,  an  intention  and  preparation  to  erect  a  building  on  the 
space,  seems  to  come  fully  within  the  principle  and  examples  of 


1  French  v.  Chenango  County  Mut.  Co.,  9  Barb.  R.  191 ;  Kennedy  v.  St. 
Fire  Ins.  Co.,  7  Hill,  122.  See  also  Lawrence  County  Mut.  Ins.  Co.,  10 
Tillou  1-.  Kingston  Mut.  Ins.  Co.,  1  id.  285. 

Seldcn's  II.  405,  868,  for  partial  for-  3  Masters  v.  Madison  County  Mut. 

feiturc  of  a  policy.  Ins.  Co.,  11  Barb.  R.  624. 

2  Burritt  v.  Saratoga  County  Mut.  ^  See  also  ruling  of  Mr.  Justice 
Fire  Ins.  Co.,  7  Hill's  11.  188;  Frost  Woodbury,  NicoU  v.  Am.  Ins.  Co.,  3 
V.  Saratoga  County  INIut.  Fire  Ins.  Co.,  Woodb.  &  Minot,  R.  529. 

5  Dcnio  R.  151;  Jennings  r.  Che-  5  Qatesr.  Madison  County  Mut.  Ins. 

nango  County  Mut.  Ins.  Co.,  2  id.  75 ;  Co.,  1   Seldcn's  R.  469,  Mr.  Justice 

Sexton  V.  Montgomery  County   Ins.  Foot  dissenting. 


SECT.  X.]  IN   FIRE   POLICIES.  485 

concealment.  Tlie  Inquiry  being  in  general  as  to  buildings  near 
enough  to  endanger  the  one  insured,  opinions  might  differ  as  to 
the  distance  at  which  such  building  might  be  ;  the  effect,  and  the 
correctness  of  the  answer  to  such  an  inquiry,  can  hardly  be  con- 
sidered a  condition  on  which  the  validity  of  the  policy  will  depend, 
and  the  Court  of  Appeals  of  New  York,  is  accordingly  of  opinion 
that  a  policy  could  not  be  forfeited  by  an  omission  to  mention  a 
neighboring  building  under  such  an  inquiry,  unless  it  were  a  case 
of  plain  fraud. 1 

Where,  to  the  inquiry  as  to  the  situation  relative  to  other  build- 
ings within  ten  rods,  the  applicant  stated  the  "nearest  building," 
in  a  certain  direction,  was  one  which  he  named,  omitting  to  specify 
another  within  that  distance,  the  vicinity  to  which  did  not  appear 
to  be  material  to  the  risk,  the  New  York  Court  of  Appeals  ad- 
judged that  the  policy  was  not  affected  by  the  omission,  on  the 
ground  that  the  applicant  appeared,  by  his  answer,  to  understand 
only  the  nearest  building  to  be  required  to  be  named  ;  and  that 
the  underwriters  were  bound  to  make  further  inquiry  if  they  de- 
manded that  any  others  should  be  specified.^ 

The  circumstance,  that  an  application  for  a  fire  policy  is  drawn 
up  by  an  agent  of  the  insurers  for  procuring  applications,  on  inspec- 
tion of  the  building  proposed  for  insurance,  does  not  prevent  the 
forfeiture  of  the  policy  by  the  falsification  of  the  answer  in  respect 
to  the  distance  of  other  buildings.^ 

873.  A  reference  in  the  policy,  by  way  of  recital  or  otherwise, 
to  a  survey  furnished  by  the  assured,  for  a  description  of  the 
building  insured,  docs  not  make  it  a  part  of  the  policy  so  as  to 
require  precise  accuracy  and  conformity  to  the  description  ;  a 
substantial  conformity  is  sufficient. 

It  was  so  held  by  the  Supreme  Court  and  Court  of  Errors  in 
New  York,  where  the  policy  stated  that  the  insured  premises  were 
"more  particularly  described  in  the  application  and  survey.""* 

1  Gates  V.  Madison  County  Mut.  Ins.  ^  Snyder  v.  The  Farmers'  Ins.  & 
Co.,  2  Comst.  R.  43.  Loan   Co.,  13  Wend.   92 ;   Farmers' 

2  Ibid.  Ins.  &   Loan  Co.  v.  Snyder,  16  id. 

3  Kennedy  v.  St.  Lawrence  County  481, 
Mut.  Ins.  Co.,  10  Barb.  R.  284. 

41* 


486  EXPRESS    WARRANTIES,   STIPULATIONS,   ETC.      [CHAP.  IX. 

A  similar  decision  was  made  by  the  Superior  Court  of  the  City 
of  New  York,  on  a  policy  in  a  condition  annexed  to  which  it  was 
provided,  that,  "if  any  person  shall  describe  the  property  other- 
wise than  it  really  is,  so  that  it  be  insured  at  less  than  the  rate  of 
premium  specified  in  the  printed  proposals,  the  insurance  shall  be 
void."  An  apartment  specified  in  the  plan  as  a  "store  for  painted 
ware,"  was  in  fact  occupied  by  the  carpenter  for  doing  the  car- 
penter's work  of  the  establishment.  The  court  were  of  opinion, 
that,  if  the  risk  was  not  thereby  enhanced  so  as  to  bring  the  build- 
ing under  a  higher  rate  of  premium,  the  policy  was  not  affected.^ 

In  these  cases  a  distinction  is  suggested  between  marine  and 
fire  policies  as  to  such  statements,  but  I  am  not  aware  of  any 
good  ground  for  a  different  construction  of  equivalent  clauses  in 
these  two  descriptions  of  insurance. 

A  representation  referred  to  in  the  policy,  that  there  is  to  be  an 
open  fireplace,  being  of  a  promissory  character,  must  be  complied 
with  within  a  reasonable  time,  or  the  underwriters  will  be  dis- 
charged.^ 

A  policy  will  be  forfeited  by  the  non-payment  of  an  assessment 
on  a  premium  or  deposit  note,  under  a  condition  to  that  effect  in 
the  policy.^ 

Where  the  description  is  of  a  fact  material  to  the  risk,  as  in  a 
policy  upon  goods  contained  in  a  framed  house  "filled  in  with 
brick,"  the  court  held  the  policy  to  be  void  because  it  was  not  so 
filled  in.'' 

874.  The  condition  that  the  policy  shall  be  void  if  the  appli- 
cant shall  "misrepresent  or  omit  to  communicate  any  circumstance 
which  ought  to  be  made  known  to  the  company  in  order  to  enable 
them  to  judge  of  the  risk  they  have  undertaken  or  are  required  to 
undertake,"  is  held  by  Tindal,  C.  J.,  and  Coltman,  Maule,  and 


1  Delonguemcre  v.  Traders'  Ins.  Co.,  policy,  the  court  query,  referring  to 

2  nail's  R.  589.  the  IMatter  of  the  Long  Island  Rail- 

2  Murdock    v.    Chenango    County  road,  19  Wend.  37. 

Mut.  Ins.  Co.,  2  Comst.  210.  ^  Fowlert;..S]tnaIns.  Co.,  6  Cowen, 

3  Beadle  v.  Chenango  Mut.  Ins.  Co.,  673 ;  S.  C,  7  Wend.  270.    In  this  case 

3  Hill,  161.    If  under  a  by-law  mere-  three  juries  successively  gave  verdicts 
ly,  which  is  not  incorporated  into  the  for  the  assured. 


SECT.  X.]  IN   FIRE   POLICIES.  487 

Cresswell,  Justices,  to  refer  to  the  time  of  negotiating  for  and 
effecting  the  policy,  and  not  to  any  subsequent  time.^ 

So  held  in  reference  to  insurance  on  a  paper-machine,  and  other 
fixtures  and  apparatus  for  manufacturing  paper,  in  a  building  repre- 
sented, at  the  time  of  making  the  policy,  to  be  used  for  the  busi- 
ness of  paper-making,  which  was  discontinued,  and,  without  notice 
to  the  underwriters,  that  of  cleansing  and  drying  cotton  waste  sub- 
stituted and  carried  on  by  another  person  than  the  assured  by  the 
assured's  permission,  which  the  jury  found  to  be  more  hazardous. 
It  did  not  appear  that  the  fire  by  which  the  loss  happened  was  at 
all  occasioned  by  this  business.^ 

The  decision  of  this  case  turned  upon  the  question,  whether  the 
assured  was  bound  by  the  stipulation  above  cited  to  give  notice 
of  the  other  business.  In  the  other  analogous  case  in  the  Queen's 
Bench,  the  drying  of  bark,  being  more  hazardous  than  drying 
corn,  which  the  furnace  was  represented  to  be  used  for,  was  only 
temporary  and  was  gratuitous,  and  a  use  for  which  it  was  suit- 
able. 

874  a.  Under  the -condition  in  a  fire  policy  that  if  the  applicant 
maJces  an  untrue  answer  to  the  inquiry  respecting  his  title,  and  the 
encumbrances,  stating  his  title  better  than  it  really  is,  or  omitting  to 
mention  encumbrances,  the  policy  shall  be  void,  it  will  be  so,  and 
this  will  be  the  effect,  notwithstanding  that  the  incorrect  answer 
is  given  by  mistake.^ 

The  condition  that  the  insurance  shall  be  void  unless  the  assured 
had  "a  perfect  unincumbered  title,"  is  held,  in  Connecticut,  not  to 
be  complied  with  in  case  of  an  unreleased  mortgage  upon  it,  though 
the  debt  thereby  secured  had  been  paid.^ 

The  applicant  being  required  to  "make  a  true  representation  of 
the  property  so  far  as  concerned  its  value  and  his  interest,  having 
answered  the  inquiry,  "  Who  is  owner  ? "  that  he  himself  was  ; 

1  Pim  V.  Eeid.  6  Mann.  &  Grang.  1.  3  Smith  v.  Bowditch  Fire  Ins.  Co., 
See  supra,  No.  866  a.,  as  to  continuing     6  Cushing's  R.  448. 

promissory  warranties.  4  Warner  v.  Middlesex  Mut.  Ass. 

2  S.  C,  on  authority  of  Shaw  i'.  Rob-     Co.,  21  Conn.  R.  444. 
berds,  6  Ad.  &  El.  75,  and  1  N.  &  P. 

279. 


488  EXPRESS   WARRANTIES,    STIPULATIONS,   ETC.      [CIIAP.  IX. 

when  he  had  merely  a  bond  for  a  deed,  the  policy  was  held,  in 
Massachusetts,  to  be  void.^ 

Where  a  mutual  insurance  company  has  a  lien  on  an  estate  to 
secure  payment  of  premiums  or  assessments  on  deposit-notes,  a 
true  statement  of  the  title  is  evidently  material,  but  it  seems  not  to 
be  so  in  other  cases.  It  is,  however,  held  in  Massachusetts,  that 
in  case  of  an  untrue  answer  that  the  estate  was  not  encumbered, 
the  policy  is  void,  though  the  underwriters,  being  incorporated  in 
another  State,  have  no  lien  on  the  estate. ^ 

Verbal  notice  of  a  mortgage  being  given  to  the  surveyor  and 
agent  of  the  underwriters  for  procuring  applications,  is  held  by  the 
Supreme  Court  of  New  York  to  satisfy  the  condition  that  the 
applicant  should  specify  encumbrances.^ 

875.  On  renewal  of  a  policy  in  favor  of  an  assignee,  all  the 
conditions  and  stipulations  arising  on  the  original  representations 
referred  to  in  the  policy,  or  otherwise,  still  subsist."* 

876.  Fire  policies  not  unfrequently  limit  the  proportion  of  the 
value  of  the  subject  that  shall  he  insured,  either  by  a  provision  in 
the  body  of  the  policy,  or  the  representations  by  the  assured  refer- 
red to  in  the  policy,  or  by  statute. 

877.  Under  a  public  statute  restricting  insurance  against  fire 
to  three  fourths  of  the  value  of  the  property,  the  insurance  on  a 
greater  proportion  is  held  to  render  the  policy  inoperative  as  to  the 
excess,  but  not  to  defeat  it  for  that  proportion.^ 

The  value  not  being  fixed  by  the  policy,  is  to  be  determined  by 
the  jury  under  this  provision. '^ 

If  the  value  is  stated  in  the  answers  of  the  assured,  he  is  thereby 
estopped  to  prove  it  to  be  greater." 

1  Smith  V.  Bowditcli  Fire  Ins.  Co.,  5  Holmes  v.  Cliarlcstown  Fire  Ins. 

6  Cushing's  11.  448.  Co.,  10  Mete.  211 ;  Egan  v.  Mutual  Ins. 

8  Davenport  v.  New  England  Mat.  Co.  of  Albany,  5  Denio,  32G. 

Fire  Ins.  Co.,  C  Cushing's  11.  o40 ;  6  Post  v.  Hampshire  Mut.  Fire  Ins. 

Clark  V.  Nl^w  England  Mut.  Fire  Ins.  Co.,  12  Mete.  555. 

Co.,  id.  34  2.  7  Holmes  v.  Charlestown  Mut.  Fire 

3  Masters  v.  Madison  County  Mut.  Ins.  Co.,  10  Mete.  211. 
Ins.  Co.,  11  15arb.  II.  C24. 

4  Clark  V.  Manufacturers'  Ins.  Co., 
8  Howard's  (U.  S.)  11.  235. 


SECT.  X.]  IN   FIRE   POLICIES.  489 

878.  The  statement  of  a  mere  expectation  in  the  policy,  or  in 
the  answers  referred  to,  is  not  a  ivarranti/  of  what  is  expected  in 
a  fire  policy,  any  more  than  in  a  marine  one. 

The  description  of  the  building  to  be  "at  present  occupied  as  a 
dwelling-house,  but  to  be  occupied  hereafter  as  a  tavern,  and  privi- 
leged as  such,"  is  not  a  warranty  of  such  occupancy,  and  the  policy 
subsists  while  it  is  vacant.^ 

879.  It  is  a  common  condition  of  fire  policies  to  be  void  in  case 
of  assignment  without  the  consent  of  the  underwriters.^ 

Under  a  provision  that  the  policy  is  to  be  void  on  the  transfer 
or  termination  of  the  "interest"  of  the  assured,  it  is  forfeited  by  a 
transfer  of  the  policy.^ 

The  consent  of  the  underwriters  that  the  policy  may  be  assigned 
to  a  mortgagee,  on  his  giving  his  note  for  the  premium,  will  not, 
unless  he  gives  the  note,  prevent  the  assignment  from  rendering 
the  policy  void.* 

If  the  secretary  of  the  company  assents  to  an  assignment,  he  is 
prima  facie  presumed  to  be  authorized.^ 

880.  Another  frequent  condition  is  that  the  policy  is  to  he  void 
on  the  ^' sale,^'  or  "transfer,"  or  "alienation,"  of  the  insured  sub- 
ject. 

This  provision  is  without  effect  in  case  of  an  absolute  sale  and 
transfer,  without  a  repurchase,  of  the  assured's  insurable  interest, 
since  the  insurance  is  thereby  vacated  for  want  of  a  subject.^ 

Under  the  provision  of  avoidance  on  alienation  by  sale,  with 
another  provision,  that,  "when  any  estate  mortgaged  shall  be 
taken  possession  of  by  the  mortgagee,  the  policy  shall  be  void," 
a  mortgage  is  held,  in  Massachusetts,  not  to  be  an  alienation 
within  the  condition,  so  long  as  the  mortgagee  has  not  taken  pos- 
session.' 

1  Catlin  V.  Springfield  Ins.  Co.,  1  5  Conover  v.  Mutual  Ins.   Co.  of 
Sumner,  434.  Albany,  3  Denio,  254. 

2  Vide,  c.  1,  s.  10,  No.  107,  108.  6  Supra,  No.  86,  87,  185. 

3  Smith  V.  Saratoga  ]\Iut.  Ins.  Co.,  "^  Jackson  v.  Mass.  Mutual  Fire  Ins. 
1  Hill,  497.  Co.,  23  Pick.  418. 

4  Smith  V.  Saratoga  Mat.  Ins.  Co., 
3  Hill,  508;  S.  C,  1  id.  497. 


490  EXPRESS    WARRANTIES,    STIPULATIONS,   ETC.       [CHAP.  IX. 

But  an  assignment  by  the  assured  to  assignees  for  the  benefit  of 
certain  of  his  creditors  was  held,  in  the  same'State,  to  render  the 
policy  void  under  this  provision,  and  it  was  held  that  the  forfeiture 
could  not  be  saved  by  proof  that  the  conveyance  was  an  illegal 
preference  of  those  creditors,  since  the  conveyance,  though  voida- 
ble at  the  election  of  the  third  parties  interested,  was  not  thereby 
void.^ 

So  the  assignment  in  bankruptcy  is  held  in  Maine  to  be  a  for- 
feiture under  a  condition  of  avoidance  by  alienation  of  the  insured 
property,  after  the  assignment  is  made  to  the  assignees.^ 

In  a  Louisiana  decision  on  the  construction  of  the  condition, 
that,  in  case  of  the  transfer  of  the  property  and  the  termination  of 
the  interest  of  the  assured,  the  policy  shall  be  void,  it  was  held, 
that,  in  case  of  sale,  where  the  property  reverted  by  reason  of 
non-payment  of  the  purchase-money,  the  risk  was  suspended,  and 
revived  on  its  reverting.^ 

An  agreement  to  sell,  and  part  payment,  is  not  an  alienation 
under  this  condition,  so  long  as  the  assured  remains  in  possession, 
and  no  conveyance  is  made,  and  the  estate  remains  as  security  to 
the  assured  for  the  fulfilment  of  the  agreement  on  the  part  of  the 


aser 


purch 

The  assured  having  agreed  verbally  to  sell  his  stock,  and  let  his 
shop  to  the  purchaser,  who  tended  in  the  shop  about  six  months, 
with  the  intention  by  the  parties  to  execute  the  agreement,  in 
reference  to  the  time  of  making  it,  when  it  v^^as  given  up.     It  was 


1  Dadmun  Manufacturing  Co.  v.  4  Trumbull  r.  Portage  County  Mut. 
Worcester  Mut.  Fire  Ins.  Co.,  11  Ins.  Co.,  12  Ohio  R.  305  ;  Tittemore  r. 
Mete.  429.  See  the  somewhat  analo-  Vermont  Mut.  Fire  Ins.  Co.,  20  Verm, 
gous  cases  of  Lazarus  i'.  General  Inte-  R.  546.  The  court  remarked,  in  this 
rest  Ins.  Co.,  5  Pick.  76,  and  same  PllF.  case,  that  a  conveyance  and  simulate- 
V.  Commonwealth  Ins.  Co.,  19  Pick,  ous  reconveyance  by  mortgage,  would 
81,  and  remarks  supra,  No.  107.  be  an  alienation  ;  but  this  dictum  is 

2  Moore  v.  Protection  Ins.  Co.,  29  at  least  questionable.  Masters  v.  Ma- 
Maine  R.  97.  dison  County  Mut.  Ins.  Co.,  11  Barb. 

3  Power  r.  Ocean  Ins.  Co.,  19  La.  R.  624;  Vide  supra,  No.  189,  294. 
R.  28. 


SECT.  X.]  IN   FIRE   POLICIES.  491 

held,  in  Maine,  that  the  policy  still  subsisted,  and  that  a  subse- 
quent loss  was  recoverable  under  it.^ 

The  policy  is  not  forfeited  under  this  condition  by  a  compulsory 
sale  on  execution,  so  long  as  the  assured  has  a  right  of  redemption 
on  payment  of  the  debt.^ 

A  dwelling-house  and  a  shop  being  insured  in  the  same  policy  for 
a  specific  amount  on  each,  on  condition  to  be  void  on  the  aliena- 
tion of  the  insured  subject,  an  alienation  of  the  shop  was  held,  in 
Massachusetts,  to  avoid  the  policy  only  to  the  amount  insured 
upon  it.^ 

Insurance  being  in  favor  of  T.  D.  and  C,  with  condition  to  be 
void  on  alienation  of  the  insured  building,  the  policy  was  assigned, 
with  the  consent  of  the  underwriters,  to  a  prior  mortgagee  for  his 
benefit  to  the  amount  of  the  mortgage.  Afterwards  C.  released 
his  interest  in  the  building  to  his  two  co-proprietors.  This  was 
held,  by  the  Court  of  Appeals  in  New  York,  to  be  a  forfeiture  of 
the  policy  in  respect  to  the  interest  of  T.  D.  and  C,  while  it 
remained  valid  in  respect  to  the  mortgagee,  who  still  had  a  right 
of  action  upon  it  in  the  names  of  the  original  assured.^ 

This  case  seems  to  have  admitted  of  a  construction  that  only 
the  third  part  of  the  entire  interest  of  the  three  assureds  was  for- 
feited in  accordance  with  the  case  before  cited.^ 

881.  It  is  a  frequent  condition,  that  a  fire  policy  shall  be  void 
in  case  of  notice  not  being  given  to  the  underwriters  of  any  other 
insurance  by  the  assured  on  the  subject.  The  condition  is  limited 
to  other  insurance  by  the  same  assured  on  the  same  subject.^ 

The  policy  is  not  forfeited  under  this  condition  by  the  party 


1  Lane  v.  Maine  Fire  Ins.  Co.,  3  5  Clark  v.  New  England  Mut.  Fire 
Fairf.  (Maine)  R.  44.  Ins.  Co.,  6  Cushlng's  R.  342. 

2  Strong  V.  Manufacturers'  Ins.  Co.,  6  Williams's  Adni'r  v.  Cincinnati 
10  Pick.  40  ;  Clark  v.  New  England  Ins.  Co.,  AVright's  (Ohio)  R.  542;  and 
Mut.  Fire  Ins.  Co.,  6  Cushing's  R.  342.  sec  Harris  v.  Ohio  Ins.  Co.,  5  Ham- 

3  Clark  V.  New  England  Mut.  Fire  mond's  (Ohio)  R.  461;  Franklin 
Ins.  Co.,  6  Cushing's  R.  342.  Ins.  Co.  v.  Drake,  2  B.  Monroe,  51 ; 

4  Tillou  V.  Kingston,  Mut.  Ins.  Co.,  Lowndsbury  v.  Protection  Ins.  Co.,  8 
1  Selden's  R.  405.  Conn.  R.  459. 


492  EXPRESS   WARRANTIES,   STIPULATIONS,   ETC.       [CHAP.  IX. 

insured  on  a  building  taking  a  policy  in  another  company  on  the 
goods  contained  in  it.^ 

Where  the  charter  and  regulations  of  a  mutual  insurance  com- 
pany authorize  only  the  president  and  secretary  to  assent  to  other 
insurance,  it  is  held,  in  Ohio,  that  the  assent  of  a  director,  or  of  the 
secretary  only,  will  not  authorize  it.^ 

In  an  action  at  law  upon  the  policy  to  recover  a  loss,  the  con- 
dition that  notice  of  other  insurance  prior  or  subsequent  shall  be 
indorsed  upon  it  or  mentioned  in  it,  or  acknowledged  in  writing  by 
the  underwriters,  is  not  satisfied  by  proof  that  it  was  known  to 
them.3  And  it  is  so  held  in  Massachusetts,  although  the  other 
subsisting  insurance  is  known  to  the  underwriters  at  the  time  of 
making  the  policy,  and  is  orally  assented  to  by  them,  and  although 
the  policy  is  filled  up  by  the  underwriters  themselves  without  any 
particular  instructions  from  the  assured.'* 

The  question  arises,  whether  such  a  case  is  not  a  subject  for  a 
remedy  at  law,  on  the  ground  of  fraud,  since  it  is  a  palpable  fraud 
to  take  a  premium  for  issuing  a  policy  known  by  the  underwriters 
to  be  void,  and  the  damage  is  the  whole  amount  of  the  loss  by  fire, 
not  exceeding  the  amount  insured.  And  there  seems  at  least  to 
be  good  ground  for  reforming  the  policy  under  equity  jurisdiction, 
as  having  been  made  through  mistake,  the  proof  that  the  parties 
intended  to  strike  out  the  clause  requiring  the  other  insurance  to 
be  mentioned  in  the  policy,  or  to  mention  it,  being  apparently  con- 
clusive, since  the  underwriters  would  be  estopped  to  allege  their 
own  fraudulent  intention  to  the  contrary. 

Notice  of  a  prior  policy  as  being  on  the  same  subject  is  suffi- 
cient, though  it  is  on  the  same  and  other  subjects.^ 

Notice  to  an  agent  for  receiving  applications  is  such  to  the  com- 
pany.^ 


1  Jones  V.  Maine  Mut.  Fire  Ins.  Co.,  4  Barrett  v.  Mutual  Fire  Ins.  Co.,  7 
18  Maine  11.  155.  Cushing's  R.  175. 

2  Stark  County  Mutual  Ins.  Co.  v.  5  Liscom  v.  Boston  Mut.  Fire  Ins. 
Ilurd,  10  Ohio  II.  149.  Co.,  9  Mete.  205. 

3  Carpenter  v.  Providence  Wash-  c  McEwen  v.  Montgomery  Mut.  Ins. 
ington  Ins.  Co.,  IC  Peters's  Sup.  Ct.  Co.,  5  Hill,  101;  Sexton  v.  Montgo- 
II.  495.  mery  Ins.  Co.,  9  Barb.  K  129. 


SECT.  X.]  IN  FIRE  POLICIES.  493 

The  rule  requiring  notice  of  other  insurance  by  indorsement  on 
the  policy  or  "otherwise,"  is  satisfied  by  notice  acknowledged  by 
the  secretary.^ 

Notice  of  another  insurance,  saying  at  the  same  time  that  it  is 
not  on  the  same  property,  is  not  good  notice  under  this  condition.^ 

An  assignee  of  a  policy  having  previously  a  policy  upon  the 
same  subject,  is  bound  to  give  notice  no  less  than  if  he  had  efiected 
a  new  policy.^  And  so  in  general  the  assignee  is  bound  by  this 
condition  no  less  than  the  original  assured."* 

No  time  for  giving  notice  of  other  insurance  being  specified, 
it  must  be  given  without  unreasonable  delay,  especially  delay  till 
after  a  loss.^ 

Under  two  successive  policies,  both  with  the  condition  of  avoid- 
ance by  other  insurance  prior  or  subsequent  without  notice,  and 
no  notice  on  either,  the  first  is  held  in  Massachusetts  and  Penn- 
sylvania to  continue  valid,  the  second  being  void  for  want  of  the 
notice,  and  so  not  being  an  insurance ;  ^  which  seems  to  be  the 
better  doctrine,  though  a  different  judgment  is  given  by  the  Su- 
preme Court  of  the  United  States;''  in  which  it  was  held,  that 
under  this  condition,  the  assured  could  not  excuse  the  want  of 
notice  of  a  subsequent  policy  which  was  void  under  the  same  con- 
dition, on  the  ground  that  it  depended  upon  the  underwriters  on 
the  other  policy  whether  that  should  be  treated  as  void. 

Where  the  interest  of  the  assured  consists  in  an  agreement  to 
purchase,  he  is  not  bound  to  give  notice  of  a  prior  insurance  in 
favor  of  the  party  who  has  agreed  to  sell.^ 

1  Potter  V.  Ontario  and  Livingston  6  Jackson  v.  Mass.  Mut.  Ins.  Co.,  23 
Mut.  Ins.  Co.,  5  Hill,  147.  Pick.  418;    Clark  v.  New  England 

2  Stacey  v.  Franklin  Ins.  Co.,  2  Mut.  Fire  Ins.  Co.,  6  CusLing's  E.. 
Watts  &  Serg.  507.  342,  where  tbe  subject  is  elaborately 

3  Walton  V.  La.  State  Mut.  Fire  Ins.  investigated  by  Mr.  Justice  Fletcher 
Co.,  2  Rob.  (La.)  R.  563 ;  Leavitt  v.  in  giving  the  judgment  of  the  court. 
Western  Mar.  &  Fire  Ins.  Co.,  7  id.  Stacey  v.  Franklin  Fire  Ins.  Co.,  2 
351.  AVatts  &  Serg.  506. 

*  Leavitt  V.  Western  Mar.  &  Fire  "^  Carpenter  v.  Washington  Ins.  Co. 

Ins.  Co.,  7  Rob.  (La.)  R.  351.  of  Providence,  16  Peters's  Sup.  Ct.  R. 

5  Barrett  v.  Mutual  Fire  Ins.  Co.,  7  495. 

Cushing's  R.  1 75.  8  Tyler  v.  ^tna  Ins.  Co.,  12  Wend. 
VOL.  I.                           42 


494  EXPRESS   ■WARKA^^TIES,    STIPULATIONS,    ETC.     [CHAP.  IX. 

Where  under  this  stipulation  the  first  pohcy  is  assigned  to  a 
mortgagee  with  the  consent  of  the  insurers,  and  while  it  remains 
in  the  hands  of  the  mortgagee  another  is  effected  by  the  assured, 
and  afterwards  he  redeems  the  mortgage,  it  is  held  by  both  the 
Supreme  Court  and  Court  of  Errors  of  New  York,  that  the  assured 
is  not  bound  to  give  notice  of  the  second  policy  because  he  is  not 
the  assured  to  which  the  condition  in  the  first  policy  relates,  when 
the  second  one  is  made.  The  Supreme  Court  were  of  opinion, 
that  the  first  policy  did  not  revert  to  the  original  assured  on  pay- 
ment of  the  mortgage,  but  the  Court  of  Errors  were  of  opinion 
that  it  did  so.^ 

It  has  been  held  by  the  Supreme  Court  of  the  United  States, 
that  a  mortgager  who  effects  insurance  on  his  mortgaged  building 
is  bound,  under  this  condition,  to  give  notice  of  other  insurance 
made  by  him  for  the  benefit  of,  and  assigned  to,  the  mortgagee,  to 
whom  it  is  mortgaged  as  collateral  security,  so  that  the  payment 
of  a  loss  to  the  mortgagee  on  the  other  policy  would  be  in  extin- 
guishment of  the  debt  secured  by  the  mortgage. 

A  mortgager  had  effected  a  policy  in  December,  1837,  for  the 
benefit  of  the  mortgagee,  as  collateral  security,  in  pursuance  of  his 
previous  agreement,  and  had  assigned  the  policy  to  the  mortgagee 
accordingly.  In  September  following,  he  effected  a  policy  on  the 
same  building  for  his  own  benefit,  with  a  different  insurance  com- 
pany, on  condition  that  the  policy  should  be  void  in  case  of  prior 
or  subsequent  insurance  without  notice  to  the  underwriters  acknow- 
ledged by  indorsement  on  the  policy  or  otherwise.  In  December, 
1838,  the  prior  policy  made  for  the  benefit  of  the  mortgagee  hav- 
ino^  terminated,  it  was  renewed  by  the  mortgager  with  the  same 
other  company  in  his  own  name  for  the  benefit  of  the  mortgagee, 
as  collateral  security,  in  pursuance  of  the  same  agreement.  The 
September  policy  was  held  to  be  void,  no  notice  having  been  given 
to  the  underwriters  of  either  the  prior  or  subsequent  insurance.^ 

50"  ;  iEtna  Fire  Ins.  Co.  f.  Tyler,  16         -  Carpenter  v.  Washington  Ins.  Co. 

id.  385.  of  Providence,  16  Peters's  Sup.  Ct.  R. 

1  Traders'   Ins.    Co.   i*.   Kobert,    9  495.     The  policy  of  December,  1838, 

Wend.  401 ;  Kobert  v.  Traders'  Ins.  was  void  under  the  same  condition. 

Co.,  17  id.  631.  S.  C,  supra. 


SECT.  X.]  IN  FIRE   POLICIES.  495 

882.  It  is  an  ordinary  condition  not  to  carry  on  in  the  building 
insured,  or  to  which  the  policy  refers,  any  one  of  certain  specified 
hazardous  trades,  or  any  such  trade  generally,  without  specifica- 
tion, except  with  the  consent  of  the  insurers. 

This  condition  is  not  violated  by  carrying  on  an  amount  of 
such  business  in  the  building,  auxiliary  and  requisite  to  the  busi- 
ness for  which  the  insured  building  is  specified  in  the  policy  to  be 
used  : 

As  the  appropriating  of  an  apartment,  in  a  building  insured  as  a 
china-ware  factory,  for  the  carpenter's  work  usually  done  in  con- 
nection with  such  an  establishment.^ 

Under  a  policy  bearing  an  indorsed  regulation  requiring  that  the 
application  shall  state  the  place  where  the  property  is  situated,  of 
what  materials  composed,  its  dimensions,  number  of  chimneys,  fire- 
places, stoves,  how  constructed,  and  for  what  occupied,  &,c.,  an 
enumeration  of -'house  building  or  repairing"  in  the  list  of  hazard- 
ous  trades,  is  held,  in  New  York,  to  refer  to  the  business  of  repair- 
ing other  buildings,  and  not  the  repairing  of  the  one  to  which  the 
policy  applies.^ 

883.  An  ordinary  condition  is  not  to  store  certain  specified  arti- 
cles in  the  insured  building,  or  that  to  which  the  insurance  refers. 
Other  stipulations  relative  to  enhancements  of  the  risk  are  fre- 
quently made. 

It  has  been  held,  that  a  reasonable  quantity  of  the  excepted 
article  may  be  kept,  where  it  is  properly  auxiliary,  or  usually  be- 
longs, to  the  business  or  use  of  the  building  expressly  or  impliedly 
permitted  by  the  policy  : 

As  the  keeping  of  a  cask  of  oil  and  one  of  spirit,  for  retail 
purposes,  in  a  building  used  as  a  grocery  shop,  the  articles  being 
usually  a  part  of  such  a  stock,  though  they  were  specified  as 
hazardous : ^ 


1  Delonguemere  v.  Tradesmens'  Ins.  ^  Langdon  v.  N.  Y.  Equitable  Fire 
Co.,  2  Hall's  City  of  New  York  Sup.  Ins.  Co.,  2  Hall's  City  of  New  York 
Ct.  R.  589.  Sup.  Ct.  R.  226  ;  N.  Y.  Equitable  Ins. 

2  Grant  v.  Howard  Ins.  Co.,  5  Hill,  Co.  v.  Langdon,  6  Wend.  623. 
10. 


406  EXPRESS   WARRANTIES,    STIPULATIONS,   ETC.      [CIIAP.  IX. 

Or  keeping  on  hand  spirituous  liquors  in  quantity  sufficient  for 
boarders  in  the  house,  under  the  same  condition. ^ 

The  same  doctrine  is  held  of  keeping  a  small  quantity  of  gun- 
powder in  buildings  insured  as  "  stores."  ^ 

So,  cotton  in  bales  being  specified  as  hazardous,  the  keeping  of 
a  sufficient  quantity  for  sale,  under  a  policy  upon  a  stock  of  a  dry 
goods  shop,  does  not  forfeit  the  policy.^ 

So  the  having  upon  the  premises  the  excepted  article  for  the 
purpose  of  making  repairs,  is  not  inconsistent  with  this  condition  : 

As  tar  for  tarring  the  building  :  * 

Or  oil  and  spirits  of  turpentine  for  painting  it.^ 

The  condition  that  notice  should  be  given  to  the  underwriters 
of  any  ''materiaV  increase  of  the  risk  on  a  mill,  and  their  con- 
sent should  be  obtained,  is  construed  by  the  Court  of  Appeals,  in 
Maryland,  to  distinguish  a  "material"  increase  from  one  that  is 
not  to  be  so  considered.  And  it  was  held  that  this  condition  did 
not  require  notice  of  repairs  necessary  and  appropriate  for  render- 
ing the  mill  useful  and  profitable.^ 

It  was  a  condition  of  a  policy  upon  a  cabinet-maker's  shop  that 
it  should  be  void,  ''if  any  steam-engine  should  be  introduced,  or 
used,  or  any  description  of  fire-heat  other  than  common  fireplaces, 
or  any  process  of  fire-heat  should  be  carried  on,  or  the  risk  should 
be  increased  "  and  the  same  not  stated  and  allowed.  Parke,  B., 
and  the  other  Barons  of  the  English  Court  of  Exchequer,  adjudged 
the  policy  to  have  been  made  void  by  putting  up  on  the  premises 
a  small  steam-engine  and  boiler  by  way  of  experiment  in  turning 
a  lathe,  for  the  purpose  of  determining  whether  to  retain  the  same 
in  the  assured's  shop  to  be  used  in  his  business.^ 


1  Kafierty  v.  New  Brunswick  Fire  5  O'Neil  v.  Buffalo  Fire  Ins.  Co.,  3 
Ins.  Co.,  3  Harrison's  (New  Jersey)  Comst.  123. 

R.  480.  6  Allen  r.  Hartford   County  Mut. 

2  Duncan  v.  Sun  Fire  Ins.  Co.,  G  Fire  Ins.  Co.,  2  ]\Iaryland  Court  of 
Wend.  488.  Appeals  R.  1852,  p.  111. 

3  Moore  v.  Frotection  Ins.  Co.,  29  ^  Glen   v.   Lewis,   17  Eng.  Jurist, 
Maine  R.  97.  842;  S.  C,  20  Eng.  Law  &  Eq.  R. 

4  Dobson   V.   Sothl))-,   1    Moody  &  (Press  of  Little,  Brown  &  Co.)  364. 
Malk.  90. 


SECT.  X.]  IN   FIRE   POLICIES.  497 

A  Statement  that  there  was  no  stove  in  a  building,  the  same 
being  then  in  tlie  process  of  being  built,  was  construed,  in  the  par- 
ticular case,  to  be  a  continuous  stipulation  against  there  being  one 
during  the  period  of  the  insurance.' 

It  is  held  by  the  Supreme  Court  in  Connecticut,  that  a  state- 
ment in  reply  to  inquiries  respecting  the  ivatch  kept  in  a  factory, 
must  continue  to  be  complied  with  according  to  the  plain  import, 
and  is  not  cancelled  and  controlled  by  proof  of  a  usage  in  the 
place  where  the  factory  is  situated.^ 

Describing  a  building  to  be  occupied  as  a  private  residence,  is 
not  a  stipulation  that  it  shall  constantly  be  so  occupied,  and  not  be 
at  all  vacant  during  the  continuance  of  the  risk.^ 

884.  Under  the  stipulaiion  to  submit  to  examination  on  oath, 
the  assured,  having  once  submitted  to  examination,  need  not  be 
examined  again,  though  he  had  then  consented  to  answer  further.* 
And  delay  by  the  assured  to  be  examined  is  excused  by  the  neces- 
sity to  remove  his  family  during  an  epidemic.^ 

885.  It  is  a  usual  condition  in  fire  insurance,  that  the  assured 
shall  produce  certain  certificates  of  a  loss,  and  the  assured^ s  books, 
and  the  particulars  of  the  loss,  and  other  exhibits  are  required  by 
some  companies. 

Non-compliance  with  a  condition  to  produce  the  certificate  of  a 
minister  and  church-warden,  was  held  by  Eyre,  C.  J.,  and  BuUer 
and  Rook,  Justices,  of  the  English  Common  Pleas,  to  be  excused, 
on  proof  of  the  groundless  refusal  of  the  certificate  by  those  per- 
sons.^ Lord  Kenyon  and  his  associates  held,  that  the  production 
of  the  document  could  not  be  dispensed  with  on  such  proof.''' 

Where  the  rules  of  a  fire  office  required  that  a  certificate  of  any 
loss,  by  the  nearest  disinterested  magistrate,  should  be  produced, 
the  certificate  of  the  certifying  magistrate  that  he  was  disinterested, 

1  Williams  v.  New  England  Mut.  ^  Moore  v.  Protection  Ins.  Co.,  29 
Fire  Ins.  Co.,  31  Maine  (1  Redd.)  K.     Maine  R.  97. 

219.  5  Phillips  V.  Protection  Ins.  Co.,  14 

2  Glendale  "Woollen  Co.  r.  Protec-    Missouri  R.  220. 

tion  Ins.  Co.,  21  Conn.  R.  19.  6  Wood  i'.  Worseley,  2  H.  Bl.  574. 

3  O'Nell  V.  Buffalo  Fire  Ins.  Co.,  3         ^  Worseley  v.  Wood,  6  T.  R.  710. 
Comstock's  Court  of  Appeals  R.  122. 

42* 


498  EXPRESS   WARRANTIES,   STIPULATIONS,   ETC.       [CIIAP.  IX. 

was  held  to  be  sufficient  prima  facie  evidence  of  the  fact.  Very 
slight  proof  that  the  certifying  magistrate  is  the  nearest  one  is  suffi- 
cient.^ 

A  certificate  of  the  loss  given  by  a  minister  known  by  the  under- 
writers not  to  be  the  "nearest,"  as  required  by  the  condition  of  the 
policy,  without  objection  on  this  account,  is  a  waiver  of  objection 
on  their  part.^ 

It  is  held  by  the  Supreme  Court  of  New  York,  and  by  Mr. 
Chancellor  Walworth,  in  giving  his  opinion  in  the  Court  of  Errors 
in  New  York,  that,  where  a  policy  requires  a  certificate  of  certain 
persons  as  to  a  loss,  "  it  is  not  necessary  that  such  certificate  should 
be  in  the  precise  words  mentioned  in  the  policy,"  but  that  it  is 
sufficient  if  it  is  evidently  equivalent.^ 

886.  Notice  of  loss  and  exhibits  stipulated  for  must  be  given  as 
stipulated  for  and  within  the  stipulated  time.^ 

It  being  stipulated  that  on  loss  by  fire  the  assured  shall  give 
immediate  notice,  and  "within  three  months  deliver  accounts  exhi- 
biting the  full  particulars  of  the  loss,"  the  giving  in  of  the  exhibit 
is  held  by  the  English  Exchequer  Chamber  to  be  a  condition  pre- 
cedent to  the  right  of  action  on  the  policy.^ 

The  stipulation  for  notice  of  loss  "  forthwith,"  means  as  soon  as 
it  can  be  conveniently  given,  and  be  reasonably  expected.^ 

A  condition  to  give  notice  of  loss  forthwith,  is  not  violated  by 
delay  while  the  assured  is  necessarily  occupied  in  taking  measures 
to  save  himself  and  his  family  from  an  epidemic  prevailing  in  the 
place  at  the  time.'' 

A  delay  of  four  months  not  accounted  for,  is  held  to  be  a  for- 
feiture of  claim  for  loss.^ 


1  Cornell  r.  Le  Roy,  9  Wend.  1G3.  &  Eq.  11.  (Press  of  Little,  Brown  & 

2  O'Xell  r.  BufTalo  Fire  Ins.  Co.,  3  Co.) 

Comst.  123.  6  St.  Louis  Ins.  Co.  v.  Kyle,  11  Mis- 

3  iEtna  Fire  Ins.  Co.  v.  Tyler,  IG  souri,  R.  278. 

Wcnil.  385.  7  Phillips  r.  Protection  Ins.  Co.,  14 

4  Franklin  Ins.  Co.  r.  Ilamlll,  G  dill's  Missouri  R.  220. 

Man  land  Court  of  Appeals  R.  87.  8  McEvei-s  r.  Lawrence,  IIofTsman's 

^  Mason  r.  Harvey,  22  Eng.  Law  Ch.  R.  173. 
&  Ya[.  R.  33C,  republished  20  Eng. 


SECT.  X.]  IX   FIRE   POLICIES.  499 

Affidavits  taken  on  behalf  of  the  underwriters  and  delivered  to 
their  agent  within  thirty  days  after  the  loss,  may  be  used  by  the 
assured  to  prove  due  notice  of  the  loss  within  that  time,  according 
to  the  condition  in  a  policy  containing  nothing  to  the  contrary .1 

887.  If,  under  a  stijmlatioji  that  the  underwriters  may,  in  case 
of  loss,  have  twenty  days  to  elect  to  replace  damaged  articles,  the 
assured  removes  them  to  prevent  an  examination  of  them,  he  incurs 
against  himself  the  presumption  of  fraud. ^ 

888.  There  is  usually  a  condition  of  forfeiture  in  these  policies 
for  false  or  fraudulent  statements  or  affidavits  of  the  amount  of  loss. 

An  over-estimate  of  the  loss  is  not  a  forfeiture  under  this  condi- 
tion :  ^ 

As  where  the  assured  made  affidavit  to  £1,085,  and  the  verdict 
was  for  £500;  4 

Or  where  he  estimated  it  at  ,^2,800,  and  the  verdict  was  for 
$1,853.5 

889.  The  underwriters  may  expressly  or  by  implication  waive 
their  right  to  object  that  the  policy  is  void  or  forfeited,  or  to  claim 
compliance  on  the  part  of  the  assured  ivith  any  condition  or  stipu- 
lation express  or  implied  ;°  as  by  omitting  to  make  inquiries  and 
demand  further  statements  of  the  assured.' 

890.  Some  fire  policies  have  a  clause  for  a  submission  of  the 
question  as  to  the  amount  of  loss,  to  arbitration. 

Under  such  an  agreement  in  an  English  policy,  that  the  "refer- 
ence should  be  subject  to  such  rules  and  conditions  as  are  usually 
inserted  in  orders  of  reference  at  Nisi  Prius.  and  that  the  submis- 
sion should  be  made  a  rule  of  court,"  the  assured  proposed  a  refer- 
ence, to  which  the  underwriters  responded  by  proposing  one  differ- 
ent from  that  specified  in  the  policy,  to  which  the  assured's  counsel 
replied,  that  it  would  be  a  better  form  to  make  the  reference  a  rule 


1  Sexton  V.  Montgomery  Ins.  Co.,  ^  ]\Ioore  v.  Protection  Ins.  Co.,  29 
9  Barb.  R.  191.  Maine,  R.  97. 

2  New  York  Fire  Ins.  Co.  i'.  Dela-  6  infra,  No.  1812,  1813. 

van,  8  Paige,  419.  7  Supra,  No.  664,  665;  Infra,  No. 

3  Hoffman  v.  Western  Fire  &  Mar.  904 ;  ^Etna  Ins.  Co.  v.  Tyler,  16  Wend. 
Ins.  Co.,  1  Rob.  (La.)  R.  216.  R.  385,  opinion  of  Walworth,  Chan., 

4  Levy  V.  Bailie,  7  Bing.  349.  at  p.  401. 


500  EXPRESS   WAERANTIES,   STIPULATIONS,   ETC.      [CHAP.  IX. 

of  court,  and  sent  a  copy  of  a  writ  and  form  of  agreement  for  the 
purpose.  Mr.  Chief  Justice  Best  ruled  that  the  condition  was 
satisfied  on  the  part  of  the  assured,  and  that  an  action  for  the  loss 
was  maintainahle.^ 


SECTION    XI.       WARRANTIES,    CONDITIONS,    AND    STIPULATIONS    IN 
LIFE    POLICIES. 

891.  Life  'policies  usually  contain  sundry  conditions,  on  non- 
compliance with  which  they  are  forfeited  ;  as. 

In  case  the  life  shall  go  beyond  certain  territorial  limits ; 

Or  shall  die  upon  the  seas  : 

Or  enter  the  regular  military  or  naval  service  : 

Or  shall  die  by  suicide,  or  by  his  own  hands  : 

Or  shall  die  by  the  hands  of  justice:^ 

Or  in  consequence  of  a  duel  : 

Or  if  premiums  shall  not  be  duly  paid  : 

Or  if  the  written  statements  of  the  assured  shall  be  untrue. 

892.  The  uritten  statements  by  the  assured  in  reply  to  interro- 
gatories are  usually  referred  to  in  the  policy  as  warranties,  and  so 
construed.'^ 

893.  The  statements  of  a  third  party,  put  in  by  the  assured 
as  constituting,  ivith  his  own  statements,  the  basis  of  the  contract^ 
and  so  referred  to  in  the  policy,  have  the  character  of  a  warranty 
of  the  facts  stated  ;  and  if  the  party  so  referred  to  by  the  assured, 
and  whose  positive  statements  are  thus  made  a  part  of  the  con- 
tract, makes  a  false  statement,  the  policy  is  void. 

As  where  the  person  on  whose  life  insurance  was  effected,  by 
another  person,  made  a  false  statement  of  the  name  of  his  medical 
attendant.'' 

1  Gladstone  v.  Osborne,  2  C.  &  P.  ^  As   to   the   construction   of,  and 

550.     Sec  as  to  agreements  for  arbi-  compliance  with,  representations  and 

tration,  supra,  No.  58  and  note,  also  expresswarranties,  see  supra,  No.  866, 

No.  865.  and  references  therein,  note  (4). 

•2  See  the  forms  of  the  three  pre-  4  Everett  v.  Desborough,  5  Bing. 

ceding  conditions,  5  Mann.  &  (Jrang.  503.     See  also  Morrison  v.  ]\Iuspratt, 

64  7,  note  to  the  ca.se  of  liorradaile  v.  4  Bing.  60;  Iluckman  v.  Fernie,  3 

Hunter,  cited  below.  M.  &  W.  505 ;  Maynard  v.  Rhode,  1 


SECT.  XI.]  IN   LIFE   POLICIES.  501 

Whether  any  such  statement  is  a  warranty  to  be  strictly  verified 
will  depend  upon  the  statement  itself,  upon  its  being  procured  by 
the  assured,  or  with  his  knowledge  or  consent,  and  upon  the 
manner  in  which  it  is  referred  to  in  the  policy,  as  already  men- 
tioned. 

894.  A  usual  inquiry  put  to  the  applicant  is,  whether  the  pro- 
posed life  is  a  good  life,  or  in  good  health,  or  is  ajjlicted  with  any 
disorder  tending  to  shorten  life. 

A  subject  warranted  to  be  in  good  health  was  troubled  with 
spasms  and  cramps,  from  violent  fits  of  the  gout.  Lord  Mansfield  : 
"Such  a  warranty  can  never  mean,  that  a  man  has  not  in  him  the 
seeds  of  some  disorder.  A  man  subject  to  the  gout  is  a  life  capa- 
ble of  being  insured,  if  he  has  no  sickn,ess  at  the  lime,  to  make  it 
an  unequal  contract."^ 

This  construction  seems  to  have  been  pretty  liberal  towards  the 
assured. 

A  like  decision  was  given  where  the  insured  party,  having  had 
a  paralysis  of  certain  muscles,  consequent  upon  a  wound,  and 
causing  inconvenience,  but  not  at  all  affecting  his  vital  functions, 
was  considered  not  to  be  afflicted  with  any  disease  tending  to 
shorten  life.^ 

The  warranty  that  a  female  was  in  good  health  was  ruled  by 
Graham,  B.,  to  be  falsified  by  her  constitution  having  been  radi-' 
cally  impaired  by  intemperance.^ 

An  insured  party,  being  warranted  free  from  any  disorder  tend- 
ing to  shorten  life,  was  affected  by  dyspepsia  ;  and  physicians  stated 
that  this  disorder,  not  in  excess,  did  not  tend  to  shorten  life.  The 
witnesses  did  not  agree  as  to  the  actual  state  of  the  subject's  health, 
but  the  jury  gave  a  verdict  in  favor  of  the  plaintiff.  On  a  motion 
for  a  new  trial,  Mr.  Justice  Chambre  said:  "All  disorders  have, 
more  or  less,  a  tendency  to  shorten  life,  even  the  most  trifling  : 
corns  may  end  in  mortification.     That  is  not  the  meaning  of  the 

C.  &  P.  360 ;  S.  C,  5  Dowl.  &  R.  266,  2  Ross  v.  Bradshaw,  1  W.  Bl.  312 ; 

cited  supra,  No.  648.  Park,  8th  ed.  924. 

1  Willis  r.  Poole,  Marsh.  Ins.,  3d  3  Aveson  v.  Kinnaird,  6  East,  188. 
ed.,  771;  2  Park,  8th  ed.,  935. 


502  EXPRESS    WARRANTIES,    STIPULATIONS,   ETC.      [CHAP.  IX. 

clause.  If  dyspepsia  were  a  disorder  that  tended  to  shorten  life, 
within  this  exemption,  the  lives  of  half  the  members  of  the  profes- 
sion of  the  law  would  be  uninsurable."  Gibbs,  C.  J. :  "  Accord- 
ing to  the  rule  contended  for,  the  assured,  to  be  insurable,  must 
have  no  disorder  at  all."  ^ 

895.  The  condition  of  forfeiture  of  a  life  policy  by  ''suicide,'' 
or,  as  it  is  more  frequently  expressed,  death  of  the  subject  ''by 
his  oivn  hands,""  has  been  elaborately  discussed  in  the  English 
Court  of  Common  Pleas;  the  question  being,  whether,  in  order  to 
bring  a  case  within  the  condition,  the  death  must  be  what  by  the 
English  law  is  felonious,  that  is  voluntarily  incurred  by  a  person 
capable  of  crime,  and  so  being  a  party  felo  de  se ;  or  whether  no 
regard  is  to  be  had  to  his  capabilities  of  crime,  and  the  policy  is 
forfeited  if  he  destroys  himself,  intending  so  to  do. 

Insurance  being  with  the  exception  of  the  death  of  the  insured 
party  "by  his  own  hands,"  he  voluntarily  threw  himself  from 
Vauxhall  Bridge  into  the  Thames,  as  the  jury  at  first  returned, 
"with  the  intention  of  destroying  life,"  there  being  "previous  to 
said  act  no  evidence  of  insanity."  Mr.  Justice  Erskine,  before 
whom  the  trial  was  had,  not  being  satisfied  with  this  verdict,  be- 
cause it  did  not  indicate  the  state  of  the  party's  mind  "at  the  time 
he  committed  the  act,"  the  jury,  after  retiring,  altered  their  ver- 
dict, by  finding  that  "at  the  time  he  was  not  capable  of  judging 
between  right  and  wrong  ;  "  and  Justices  IMaule,  Erskine,  and 
Coltman,  being  a  majority  of  the  court,  gave  opinions  seriatim, 
that  the  judgment  should  be  rendered  for  the  underwriters  on  this 
verdict,  on  the  ground  that  the  object  of  the  condition  was  to  ex- 
clude claims  in  cases  where  the  motive  of  the  assured  might  be  to 
benefit  his  family,  and  that  he  might  be  influenced  by  this  motive, 
though  his  mind  were  so  disordered  as  to  render  him  incapable  of 
distinguishing  between  right  and  wrong.  They  thought  the  con- 
dition included  all  acts  of  intentional  self-destruction. 

Tindal,  C.  J.,  dissented,  being  of  opinion,  that,  as  the  condition 
was  the  language  of  the  underwriters,  and,  in  case  of  ambiguity, 

'  Watson  r.  Mainwaring,  1  Taunt.  7C3. 


SECT.  XI.]  IN   LIFE   POLICIES.  503 

ought  lo  be  construed  strictly  in  respect  to  them,  it  ought  to  be 
limited  to  cases  of  felonious,  criminal  suicide.^ 

Where  the  party  whose  life  was  insured,  being  at  the  time  sub- 
ject to  insanity,  went  out  in  the  night  to  a  pond  of  shoal  water, 
where  he  was  found  drowned,  his  clothes  being  folded  and  laid 
near  to  the  pond,  Alexander,  C.  B.,  in  his  instructions  to  the  jury, 
seems  to  have  recognized  the  doctrine,  that  voluntary  self-destruc- 
tion is  included  in  the  warranty,  for  lie  puts  the  case  upon  the  dis- 
tinction, whether  the  party  went  to  the  pond  with  the  intention  of 
bathing  and  was  drowned  accidentally,  or  drowned  himself  pur- 
posely.    The  jury  found  for  the  holder  of  the  policy.^ 

A  construction  of  this  condition,  similar  to  that  of  Tindal,  C.  J., 
above  cited,  has  been  put  upon  it  by  the  Supreme  Court  of  New 
York,  in  case  of  voluntary  death  by  drowning  ;  namely,  if  the 
party  is  insane,  it  is  not  a  forfeiture.^  And  I  take  our  law  to  be, 
that  any  mental  derangement  which  would  be  sufficient  to  exone- 
rate a  party  from  a  contract,  would  render  a  person  incapable  of 
occasioning  the  forfeiture  of  a  policy  under  this  condition. 

896.  Policies  often  omit  the  forfeiture  by  suicide  in  favor  of  a 
creditor. 

Accordingly,  in  case  of  the  assignment  of  a  life  policy,  issued 
by  the  Britannia  Life  Insurance  Company,  containing  that  excep- 
tion, as  collateral  security,  VVigram,  V.  C,  in  the  English  Court 
of  Chancery,  held  that  an  amount  insured  by  the  policy  not  ex- 
ceeding the  assignee's  claim  was  exempted  from  the  condition.'* 
The  regulations  of  some  life  companies  authorize  their  directors, 
in  a  case  of  suicide,  to  pay  any  amount  to  the  holders  of  the  policy, 
not  exceeding  the  value  of  the  policy  at  the  time,  for  surrender.^ 

897.  Under  the  condition  that  the  yrcmiiim  shall  he  iiaid  within 
fifteen  days  after  the  end  of  a  quarter  or  year,  the  forfeiture  is  not 


^  Borradaile  v.  Hunter,  5  Mann.  &  3  Breasted  v.  Farmers'  Loan  Soci- 

Grang.  G39,  in  1843.  ety,  4  Hill,  73. 

2  Garrett  v.   Barclay,  5  Mann.  &  4  Cook  v.  Black,  2  Jones  on  Annui- 

Grang.  643,  n.,  in  1826  ;  and  see  Kin-  ties,  1186. 

near  v.  Borradaile,  representing  tbe  ^  5  Mann.  &  Grang.  648,  n. 
Rock  Life  Ins.  Co.,  id.  643,  in  1832. 


504  EXPRESS   WARRANTIES,   STIPULATIONS,   ETC.     [CUAP.  IX. 

cancelled,  and  the  policy  revived,  by  payment  after  that  time  to 
the  agent  of  the  insurers.' 

A  policy  upon  a  party  stipulated  to  pay  his  widow  an  annuity, 
if  "he"  should  pay  the  quarterly  premiums  during  his  life,  and  all 
assessments,  according  to  the  rules  of  the  society,  one  of  which 
rules  was,  that,  if  a  member  neglected  to  pay  within  fifteen  days 
after  the  quarter-day,  he  might  have  the  policy  revived  by  pay- 
ment of  all  arrearages  and  a  fine  within  six  months,  then  being  in 
as  good  health  as  "when  the  policy  expired."  The  premium  be- 
came due  on  the  20th  of  December.  He  died  on  the  25th,  and 
his  representatives  tendered  the  premium  on  the  2Tth.  Lord 
Ellenborough  and  his  associates  held,  that  the  rule  required  the 
payment  to  be  by  himself,  and  that  the  policy  could  not  be  revived 
by  his  representatives.^ 

The  rule  of  a  society  being  that,  if  the  agent  shall  not  give 
notice  to  the  society  of  the  non-payment  of  the  premium  within 
fifteen  days  after  it  is  due,  he  shall  be  charged  with  it,  the  so 
debiting  him  will  not  save  the  forfeiture  of  the  policy  by  the  non- 
payment.-^ 

893.  A  condition  to  name  the  ''  usual  medical  attendant "  of  a 
proposed  life  is  forfeited  by  omitting  one  who  had  prescribed  for 
her  and  understood  her  constitution  and  aliments,  and  only  naming 
one  who  had  casually  recommended  something  for  a  cold,  on  two 
occasions,  so  trifling  that  he  had  not  made  any  charge.^ 

This  condition  was  ruled  by  Abbott,  C.  J.,  to  be  forfeited  by 
only  naming  a  medical  attendant  who  had  not  attended  the  party 
for  three  years  preceding,  and  omitting  to  name  two  who  had  more 
recently  attended  him  in  severe  illness.'^  In  this  case  the  forfeit- 
ure was  put  upon  the  ground  of  an  intent,  by  the  party  whose  life 
was  insured,  to  deceive,  though  he  was  not  himself  interested  in 
the  insurance. 

Where   the   agent  of  the   underwriters,   at   the  request  of  the 


*  Acey  r.  Fornie,  7  Mces.  &  Wels.  ^  Huckman  r.  Femie,  3  i\I.  &  W. 

151.  505,  cited  supra,  No.  648. 

^  Want  V.  Blunt,  12  East,  183.  5  Maynard  v.  Rhode,  1  C.  &  P.  SCO ; 

8  Acey  r.  Femie,  7  M.  &  W.  151.  S.  C,  5  Dowl.  &  Kyi.  266. 


SECT.  XI.]  IN   LIFE   POLICIES.  605 

assured,  who  had  an  interest  in  a  life,  applied  to  the  proposed  life 
for  the  name  of  his  "usual  medical  attendant,"  and  he  named  a 
physician  who  had  formerly  attended  him,  instead  of  a  quack  doctor 
who  had  more  recently  attended  him  after  the  "drunken  bouts" 
in  which  he  was  in  the  habit  of  indulging  himself,  Best,  C.  J.,  and 
his  associates  of  the  English  Common  Pleas,  held  the  policy  to  be 
void.^ 

899.  It  being  required  to  be  stated  tvhether  the  party  proposed 
for  insurance  had  spit  blood,  the  policy  was  held  to  be  forfeited 
by  his  not  mentioning  an  instance  of  his  spitting  blood  four  years 
previous,  if  it  was  a  spitting  of  blood  within  the  ordinary  meaning 
of  the  phrase,  whatever  indication  this  might  be  as  to  his  health, 
the  insurers  being  entitled  to  be  informed  of  the  fact,  that  they 
might  make  their  own  inferences.^ 

900.  An  answer  that  the  life  is  of  temperate  habits  is  falsified 
by  his  having  been  of  intemperate  habits,  though  his  health  and 
probability  of  long  life  are  in  no  degree  affected  thereby.^ 

901.  In  a  life  policy,  made  July,  1831,  the  subject,  Colonel 
Griswold,*vvas  warranted  ^'not  to  be  subject  to  gout,  verUgo,  Jits," 
he.  It  appeared  that,  in  1827,  he  had  one  or  two  fits  of  an  epi- 
lectic  character,  in  consequence  of  a  fall  down  some  stone  steps, 
but  had  not  before  or  afterwards  been  subject  to  any  fits.  Lord 
Abinger,  instructing  the  jury,  said  :  "The  interpretation  I  put  upon 
this  clause  is,  not  that  the  party  never  had  a  fit,  but  that  he  was 
not,  at  the  time  of  the  insurance  being  made,  a  person  habitually 
and  constitutionally  afflicted  with  fits."^ 

902.  Under  the  condition  of  forfeiture  by  reason  of  untrue  state- 
ments, the  policy,  and  the  premiums  paid  upon  it,  are  forfeited, 
though  the  untrue  statement  is  honestly  made,  and  is  believed  to 
be  true  by  the  party  making  it  or  answerable  for  it.^ 


1  Everett  v.  Desborough,  5  Bing.        4  Chattock  v.   Shaw,  1   Moody   & 
603 ;  and  see  Lindenau  v.  Desborough,     Robinson,  498. 

8  B.  &  C.  586  ;  S.  C,  3  C.  &  P.  353.        ^  Duckett  v.  Williams,  2  Cromp.  & 

2  Geach  v.  Ingall,  14  Mees.  &  W.  95.    M.  348. 

3  Southcombe  v.  Merriman,  Car.  & 
Marsh.  286,  per  Coleridge,  J. 

VOL.  I.  43 


506  EXPRESS   WARRANTIES,   STIPULATIONS,  ETC.      [CHAP.  IX. 


SECTION    XII.       STIPULATION    FOR    SET-OFF. 

903.  It  is  a  frequent  stipulation  in  policies,  and  often  in  the 
consent  to  assignments  of  them,  that  the  underwriters  shall  have 
the  right  to  set  off  demands,  for  premiums  or  otherwise,  against 
losses. 

A  policy  being  assigned  together  with  the  assured  ship,  and  a 
loss  having  occurred,  the  insurers,  after  the  amount  of  loss  had 
been  settled,  consented  to  pay  it  to  the  assignees,  deducting  the 
premium  notes  of  the  assignors  held  by  them,  some  due  before  the 
assignment,  others  not  so.  It  was  held  by  Oakley,  C.  J.,  that, 
under  the  statute  of  New  York,  relative  to  set-off  generally,^  the 
demand  for  loss,  being  at  the  time  of  the  assignment  of  the  policy 
unliquidated,  could  not  have  been  a  subject  of  set-off  between  the 
original  parties  to  the  policy,  and  accordingly  could  not  be  so  be- 
tween the  assignees  and  the  underwriters.^  And  consequently  the 
latter  were  liable  to  pay  the  whole  amount  of  the  loss,  in  a  suit 
brought  in  the  names  of  the  parties  originally  insured,  for  the  bene- 
fit of  the  assignees  of  the  policy. 

In  Pennsylvania,  a  demand  unliquidated  at  the  time  of  the  as- 
signment, may  be  set  off.^ 

This  latter  seems  to  be  the  rule  in  England,  where  it  is  held, 
that  an  underwriter  has  a  right  to  set  off  premiums  on  policies  made 
before  the  bankruptcy  of  the  assured,  against  losses  occurring  after 
the  bankruptcy  on  policies  of  date  prior  to  it."* 

Where  the  assignment  of  a  policy  was  assented  to  by  the  insur- 
ance company,  "  reserving  their  rights  expressed  in  the  policy,"  by 
which  it  was  stipulated  to  pay  any  loss  in  sixty  days  after  proof, 
"the  amount  of  the  premium  note,  if  unpaid,  and  all  sums  due  to 
the  company  from  the  insured  when  such  loss  becomes  due,  being 

1  Revised  Statutes,  278,  2d  ed.  4  Graham  v.  Russell,  5  M.  &  L.  498 ; 

2  Diehl  V.  General  Mutual  Ins.  Co.,  2  Marsli.  K.  5G1 ;  S.  C,  3  Price,  227  ; 
1  Sandf.  N.  Y.  City  Sup.  Ct.  R.  2.'i7.     overruling   Glennie    v.  Edmunds,  4 

*  Rousset  V.  Ins.  Co.  of  North  Ame-     Taunt.  775. 
rica,  1  Binn.  429  ;  Gourdon  v.  same 
Defendants,  id.  430,  n. 


SECT.  XIII.]      WAIVER  OP  FORFEITURE  BY  NON-COMPLIANCE.  507 

first  deducted,"  it  was  held  in  Massachusetts,  that  the  company 
were  entitled  to  set  off  premium  notes  given  to  them  by  the  assign- 
ors, in  the  usual  course  of  the  business  of  insurance  by  them, 
subsequently  to  the  date  of  the  assignment,  the  assignors  still  re- 
maining solvent.^  This  was  a  per  curiam  opinion,  and  not  easily 
reconcilable  to  the  familiar,  undisputed,  and  indisputable  doctrine 
relative  to  assignment  and  notice,  before  stated.^ 


SECTION    XIII.       WAIVER    OF    FORFEITURE    BY    NON-COMPLIANCE 
WITH    AN    EXPRESS    WARRANTY. 

904.  The  right  of  the  underwriters  to  insist  on  a  concealment 
or  insufficiency  of  the  assurecTs  answers  to  inquiries,  7nay  be  waived 
by  their  neglecting  to  make  further  inquiries.^  And  their  right  to 
insist  on  a  non-compliance  ivith  a  stipulation  for  statements  and 
proofs  of  the  loss,  may  be  ivaived  by  the  silence  of  the  underwriters 
when  the  same  are  presented,  or  by  their  refusal  to  pay  the  loss 
on  other  grounds,  after  the  non-compliance  is  known  to  them.* 

Where,  with  a  knowledge  of  an  erroneous  statement  of  the 
distance  of  other  buildings  from  that  insured,  the  company  had 
subsequently  levied  and  received  payment  of  assessments  on  the 
stock  note  of  the  assured,  this  was  held  to  be  a  waiver  of  the  for- 
feiture.^ 

But  where  a  policy  is  forfeited  by  some  act  of  the  assured,  as 
by  an  assignment  after  the  risk  has  commenced,  an  assessment  on 
the  stock  note  of  the  assured  for  losses,  is  not  a  waiver  of  the  for- 
feiture.^ 

In  case  of  the  answer  to  the  inquiry  as  to  buildings  within  ten 
rods,  the  applicant  stated  what  building  was  "nearest"  on  each 


1  Wiggin  V.  American  Ins.  Co.,  18  ^  Frost  u.  Saratoga  County  Mat.  Ins. 

Pick.  158.     See  also  Wiggin  v.  Suf-  Co.,  5  Denio,  154;  Gates  v.  Madison 

folk  Ins.  Co.,  id.  145.  County  Mut.  Fire  Ins.  Co.,  2  Conist. 

2Supra,  No.  81,  106.  R.  43. 

3  O'Neil  V.  Buffalo  Fire  Ins.  Co.,  3  6  Smith  v.  Saratoga  County  Mut. 
Comst.  R.  123.  Ins.  Co.,  3  Hill,  508.     See  also  Neely 

4  Infra,  No.  1800,  et  seq.     Prelimi-  v.  Onondago  County  Mut.  Ins.  Co.,  7 
nary  Proof.  id.  50. 


50l8  EXPRESS    WARRANTIES,    STIPULATIOXS,    ETC.      [CHAP.  IX. 

side,  omitting  to  mention  one  within  that  distance  further  off,  it 
was  held,  in  New  York,  that,  as  the  answer  indicated  tliat  the 
applicant  understood  the  inquiry  to  relate  only  to  the  nearest,  and 
the  building  omitted  was  not  material  to  the  risk,  and  the  answer 
seemed  rather  to  imply  that  there  were  other  buildings  within  ten 
rods,  the  omission  by  the  underwriters  to  make  further  inquiry, 
was  a  waiver  of  objection  on  account  of  the  insufficiency  of  the 


answer 


r  1 


The  written  statement  referred  to  in  a  policy  on  a  mill  was, 
"there  is  one  stove"  in  the  building;  "the  pipe  passes  through  a 
window  at  the  side  ;  there  will,  however,  be  a  stove-chimney  built, 
and  the  pipe  will  pass  into  it  at  the  side."  The  assured  after- 
wards removed  the  stove  to  a  different  part  of  the  building,  and 
carried  the  pipe  through  a  stone  placed  in  the  roof:  and  on  notice 
of  this  alteration,  the  secretary  of  the  insurance  company,  of  whose 
authority  no  question  is  made  in  the  case,  indorsed  upon  the  policy, 
"Consent  is  given  that  the  within  policy  remain  good,  notwith- 
standing the  stove  be  removed."  Edmonds,  J.,  ruled  that  this 
was  a  waiver  of  the  promissory  warranty.  The  verdict  being  for 
the  assured,  a  new  trial  was  refused  by  the  Supreme  Court  in 
New  York,  and  in  the  Court  of  Appeals  was  granted  on  different 
grounds,  one  ground  stated  by  Cady,  J.,  being,  that  this  was  not 
a  waiver.2 

But  this  latter  construction  of  the  indorsement  is  certainly  very 
questionable,  since  it  should  seem  that  the  company  could  not  in- 
tend that  the  building  of  the  stove-chimney  should  still  be  insisted 
upon,  when  the  pipe  of  the  only  stove  in  the  mill  was  permitted 
to  pass  through  the  roof. 

A  mere  verbal  consent  to  waive  a  forfeiture  without  any  consi- 
deration or  act  done  thereupon,  has  been  held  not  to  be  binding.^ 

•  Gates  V.  Madison  County  Mutual         3  Cockerill  v.  Cincinnati  Mut.  Ins. 
Fire  Ins.  Co.,  2  Comst.  R.  43 ;  S.  C,     Co.,  IC  Ohio  R.  149. 
3  Barb.  R.  "3. 

2  Murdock    v.    Chenango    County 
Mut.  Ins.  Co.,  2  Comst.  210. 


CHAPTER    X. 

WHAT   RISKS   MAY   BE   INSURED   AGAINST. 

905.  The  risks,  in  insurance,  are  the  causes  of  loss  against 
ivMch  the  policy  is  intended  to  indemnify  the  assured.  It  has 
already  appeared,  that,  in  general,  persons  may  be  insured  against 
any  event,  by  the  happening  of  which  they  might  sustain  a  pecu- 
niary damage.  But  there  are  some  exceptions  to  this  rule,  which 
depend  upon  the  same  principles  that  have  been  stated  respecting 
insurable  interest. 

906.  A  contract  of  indemnity  against  any  risk  is  void,  if  incur- 
ring the  risk,  or  permitting  indemnity  against  it,  is  in  contraven- 
tion of  the  provisions  or  obvious  policy  of  the  law,  or  an  infringe- 
ment upon  the  rights  of  persons  not  parties  to  the  contract. 

A  person  cannot  be  insured  against  the  loss  which  he  may  incur 
by  violating  the  law.^  It  is  an  illegal  insurance  to  insure  against 
the  consequences  of  wrongful  acts."  ^ 

907.  An  assured  may  be  indemnified  for  a  loss  by  an  uninten- 
tional contravention  of  a  law  of  the  government  to  which  both 
parties  are  subject,  where  he  is  not  at  the  time  affected  by  notice 
of  the  law. 

A  ship,  owned  and  insured  in  New  York,  got  under  way  in  the 
harbor  of  that  place  for  her  voyage,  a  few  hours  before  intelligence 
of  the  embargo  act  of  1807,  passed  three  days  before,  was  received 
there;  and,  on  news  of  the  enactment  of  the  law,  was,  before  get- 
ting out  of  the  port,  seized  for  the  violation  of  it.  The  assured 
abandoned,  and  it  was  adjudged  that  he  was  entitled  to  recover  for 
a  total  loss.^ 


1  Johnston  v.  Sutton,  Doug.  241.  249;  Gray  v.  Sims,  3  Wash.  C.  C.  R. 

2  Delanoy  v.  Robson,  5  Taunt.  605.  276.     And  supra,  see  c.  3,  s.  2. 

See  Dalmada  v.  Motteux,  Park,  8th  3  Walden   v.   Phoenix   Ins.   Co.,  5 

ed.,  504  ;  Cohen  v.  Hinckley,  1  Taunt.  Johns.  310. 
43* 


510  WHAT   RISKS    MAY    BE    INSURED    AGAINST.         [CHAP.  X. 

The  equity  of  the  rule  adopted  by  the  court  is  obvious,  though 
it  is  not  consistent  with  the  doctrine  held  in  England  and  the 
United  States,  that  a  law  is  binding  throughout  the  country  imme- 
diately on  its  being  enacted,  unless  it  is  otherwise  provided,  though 
citizens  at  a  distance  from  the  seat  of  government  cannot  possibly 
have  immediate  notice  of  it.^ 

908.  A.  person  may  he  insured  against  the  consequences  of 
violating  the  regulations  of  trade  and  the  municipal  laivs  of  a 
foreign  state."^ 

If  the  vessel  or  cargo  be  seized  and  condemned  in  a  foreign 
country,  for  violating  their  revenue  laws,  the  insurers  will  be  liable 
to  pay  this  loss,  provided  it  appears  by  the  policy,  and  the  course 
of  trade,  that  this  was  one  of  the  risks  contemplated  by  the  par- 
ties.^ 

909.  Though  the  goods  of  a  neutral  employed  in  a  contraband 
trade  are  subject  to  a  seizure  and  confiscation  by  a  belligerent, 
yet  the  trade  is  not  considered  to  be  illegal'^  on  the  part  of  the 
neutral,  and  the  risk  of  seizure  as  contraband  may,  accordingly,  be 
legally  insured  against.^ 

The  treaty  between  Great  Britain  and  Portugal  contains  a  sti- 
pulation against  trade  in  articles  contraband  of  war,  enumerating 
them.  This  treaty  was  construed  to  apply  only  to  trade  during  a 
war  in  which  one  of  the  parties  to  the  treaty  might  be  engaged.^ 

910.  A  valid  contract  may  be  made  for  the  purpose  of  indemni- 
fying the  assured  against  the  administration  of  the  laws  of  nations 
by  a  foreign  tribunal. 

It  has  at  limes  been  a  common  practice,  in  some  parts  of  the 
United  States,  to  insert  a  provision  in  a  policy  containing  a  war- 
ranty of  neutral  property,  that  proof  of  the  property  being  neutral 
should  be  "n)ade  only  in  the  United  States."     The  construction 

•  As  to  promulgation  of  laws,  sec  ^  Sui:>ra,  No.  282. 

Kent's  Com.,  3d  ed.,  458.  5  The     Santissima     Trinidada,     7 

2  Supra,  No.  2C8.  Wheat.  283.     See  also  Gray  v.  Sims, 

3  Valin,  tit.  2,  p.  130,  says,  that  to  3  Wasli.  C.  C.  R.  276. 

trade  In  fbrcin;n  countries,  in  violation        6  Wilbraham  v.  Wartnaby,  1  L.  & 
of  their  laws,  is  regarded  as  an  inge-    W.  144. 
nious  and  laudable  species  of  address. 


CHAP.  X.]         WHAT   RISKS   MAY   BE   INSURED    AGAINST.  511 

put  upon  this  provision  was,  that  the  parties  to  the  policy  should 
not  be  affected  by  any  judgment  given  by  a  foreign  tribunal  respect- 
ing the  neutral  character  of  the  property,  but  the  question  should 
still  be  left  open  to  be  considered  by  the  courts  of  the  United 
States.  No  question  has  ever  been  made  as  to  the  legality  and 
validity  of  such  an  agreement. 

911.  A  person  cajmot  protect  himself  by  insurance  against  the 
loss  occasioned  by  his  own  fraudulent  acts  and  misconduct. 

A  policy  being  made  against  "  all  risks,"'  the  court  said  it 
applied  "to  all  losses,  except  such  as  arise  from  the  fraud  of  the 
assured.  This  limitation  is  proper,  for  it  cannot  be  supposed  that 
the  plaintiff  was  to  be  insured  against  his  own  fraudulent  acts."  ^ 

912.  Upon  the  question,  whether  the  members  of  a  mutual  insur- 
ance company  can  bind  themselves  to  indemnify  each  other  for  the 
loss  that  any  one  may  incur  by  his  oion  vesseVs  running  down 
another,  the  English  Court  of  Common  Pleas  said,  the  assured  are 
also  "  insurers,  and  are  as  much  interested  to  extend  the  principle 
of  loss  as  to  restrain  it;"  and  the  insurance  against  this  risk  was 
accordingly  held  to  be  valid.^  But  the  court  intimates,  by  giving 
this  reason,  that  if  the  contract  necessarily  made  it  for  the  interest 
of  the  assured  to  incur  damage,  it  would  for  this  cause  be  void. 

913.  A.  citizen  may  be  insured  against  an  arrest  or  detention 
by  his  own  government,  not  occasioned  by  his  contravention  of  law. 

A  question  was  first  raised  on  this  proposition  in  a  case  where 
both  contracting  parties  were  subjects  of  the  same  government. 
A  vessel  insured  was  seized  by  government  and  converted  into  a 
fire-ship.  Chief  Justice  Holt  was  inclined  to  the  opinion,  that  the 
insurers  were  liable,  but  the  case  being  referred,  the  point  was  not 
decided.^ 

Lord  Ellenborough  said,  that,  where  the  assured  was  a  British 
subject,  he  might  recover  against  a  British  underwriter  for  a  loss 
sustained  by  an  act  of  their  own  government ;  "that  being  totally 
different  from  the  case  of  a  foreign  assured  ;  for  amongst  our  own 


1  Goix  V.  Knox,  1  Johns.  Cas.  337 ;  2  Delanoy  v.  Robson,  5  Taunt.  605 
and  see  Earl  v.  Shaw,  id.  313  ;  Poth.  3  Anon.,  2  Salk.  444 ;  2  Ld.  Raym. 
n.  65  ;  Simeon  v.  Bazett,  2  M.  &  S.  94.     840. 


512  WHAT   RISKS   MAY   BE   INSURED   AGAINST.         [CHAP.  X. 

subjects,  whether  the  plaintiff  or  defendant  sustain  the  loss,  it  can- 
not prejudice  the  interests  of  the  country."^  The  same  principle 
is  adopted  in  the  United  States.^ 

In  the  case  of  a  policy  on  an  American  ship  from  New  York  to 
Wilmington,  North  Carolina,  and  thence  to  Dublin,  which  sailed 
on  the  voyage  to  Wilmington,  but  was  detained  by  an  embargo 
before  she  got  to  sea  from  that  place,  Chief  Justice  Kent,  giving 
the  opinion  of  the  court,  said  :  "  It  is  a  very  forced  argument  to 
liken  this  case  to  a  contract  to  do  an  unlawful  act,  or  to  perform 
an  illegal  voyage.  The  voyage  commenced  before  the  law  existed. 
It  is  not  the  object  of  the  policy  to  violate  any  law.  It  was  an  in- 
demnity against  arrests  and  detentions,  not  a  resistance  of  them. 
Where  both  parties  belong  to  the  same  government,  the  act  of  the 
government  is  as  much  the  act  of  one  party  as  of  the  other,  and 
each  ought  to  be  equally  estopped  from  taking  advantage  of  it  to 
the  prejudice  of  the  other."  ^ 

Insurance  was  made  in  New  York  on  the  "British  bris:  Fran- 
cis,"  from  Middletown,  Connecticut,  to  the  West  Indies,  &c.  The 
assured,  the  owner  of  the  ship,  was  a  British  subject.  The  ship 
was  seized  off  Antigua  by  a  British  ship  of  war,  and  carried  into 
that  island,  and  there  condemned  by  a  British  vice-admiralty  court, 
on  account  of  an  alleged  violation  of  the  British  navigation  acts. 
On  the  loss  being  claimed,  it  was  objected  on  the  part  of  the  under- 
writers, that  the  acts  of  the  naval  and  judicial  officers  of  the  British 
government  in  seizing  and  condemning  the  ship,  must  be  imputed 
to  the  assured.  Mr.  Justice  Sutherland,  in  giving  the  opinion  of 
the  court,  said:  "It  is  contended  that  the  assured,  being  a  British 
subject,  and  his  vessel  having  been  condemned  by  a  British  court, 
cannot  recover  for  an  act  done  by  or  under  the  authority  of  his 
own  state.  There  is  a  class  of  cases  which  holds  this  doctrine,  in 
relation  to  the  legislative  acts  of  a  government,  but  no  case  has 
been  furnished  by  the  counsel,  and  none  has  been   found  by  the 


'  Page  I'.  Thompson,  Park,  130,  n.  3  M'Bride    v.   Marine    Ins.    Co.,  5 

2  Delano  v.  liedfurd  Mar.  Ins.  Co.,  Johns.    299.      See    also   Waldcn    v. 

10  Mass.  R.  34  7  ;  Orllin  v.  Ins.  Co.  of  PhcEnl.x:  Ins.  Co.,  id.  310  ;  Ogden  v. 

Pcnn.s}lvania,  2  Wash.  C.  C  R.  312.  N.  Y.  Firemens*  Ins.  Co.,  10  id.  177. 


CHAP.  X.]        AVIIAT   RISKS    MAY   BE   INSURED    AGAINST.  513 

court,  in  which  the  principle  has  been  extended  to  the  decisions  of 
tlie  courts  of  justice."^ 

The  opinion  of  the  court  accordingly  was,  that  the  assured 
might  be  indemnified  against  such  a  loss. 

914.  A  foreign  assured  is  indemnified,  under  a  policy  in  the 
common  form,  against  the  acts  of  his  own  government,  that  are 
not  hostile  to  that  of  the  underioriter. 

The  contrary  was  held  in  a  case  where  some  Americans,  being 
neutrals,  shipped  property  for  a  voyage  from  the  United  States  to 
Liverpool,  which  was  insured  in  England  on  account  of  the  ship- 
pers. A  vessel  belonging  to  tlie  American  consul  at  Liverpool 
was  insured  there  at  about  the  same  time.  After  the  risks  had 
comnienced  under  these  policies,  the  vessel  and  cargoes  insured 
were  detained  in  the  American  ports  by  the  embargo  of  1807. 
Losses  being  claimed  on  this  account,  Lord  Ellenborough,  who 
gave  the  opinion  of  the  court,  said  :  "  In  all  questions  arising  be- 
tween the  subjects  of  different  states,  each  is  a  party  to  the  public 
authoritative  acts  of  his  own  government;  and,  on  that  account,  a 
foreign  subject  is  as  much  incapacitated  from  making  the  conse- 
quences of  an  act  of  his  own  state  the  foundation  of  a  claim  against 
a  British  subject,  in  a  British  court  of  justice,  as  he  would  be  if 
such  an  act  had  been  done  immediately  and  individually  by  such 
foreign  subject  himself."  ^ 

But  in  a  later  case,  the  opinion  of  the  same  court,  given  by  the 
same  judge,  does  not  confirm  this  doctrine.  A  ship  and  cargo  be- 
longing to  Prussian  subjects,  residing  at  Colburg,  being  insured  in 
England,  were  seized  and  confiscated  by  the  Prussian  government, 
under  the  Berlin  decree.  The  insurers,  in  defence  against  a  claim 
for  the  loss,  assumed  the  ground  upon  which  the  court  had  decided 
the  above  cases.  Lord  Ellenborough  said:  "There  is  no  doubt 
that  an  insurance  upon  an  American  ship,  against  an  American 
embargo,  might  be  good  ;  for  not  only  an  insurance  against  the 
acts  of  the  assured's  own  government,  but  even  against  his  own 


1  Francis  v.  Ocean  Ins.  Co.,  6  Co-     Same  v.  Forbes,  id.  539;  Maury  v. 
wen,  404.  Shedden,  id.  540. 

2  Conway  v.  Davidson,  1 0  East,  536 ; 


514  WHAT   RISKS   MAY   BE   INSURED   AGAINST.        [CUAP.  X. 

acts,  might  be  good,  if  the  underwriter  was  disposed  to  enter  into 
so  hazardous  a  risk."  He  goes  on  to  say,  that  the  underwriters  in 
the  above  cases  did  not  intend  to  insure  against  the  acts  of  the 
American  government.  "  As  the  perils  occasioned  by  the  acts  of 
the  party's  own  government  are  held  to  be  excluded,  on  the  rea- 
son of  the  thing,  so  they  may  be  held  to  be  included  whenever 
the  reason  of  the  thing  requires  it."  And  judgment  was  given  for 
the  assured.^  Bat  it  is  not  said  that  there  was  any  difference  be- 
tween the  policies,  or  any  other  circumstance  to  distinguish  the 
cases ;  the  latter  decision,  therefore,  seems  to  overrule  the  former. 
Chief  Justice  Kent,  speaking  of  this  notion,  that  the  act  of  the 
government  is  that  of  its  subjects,  says  it  is  "  too  fanciful "  to  be 
entitled  to  any  weight.^ 

915.  An  insurer  cannot  bind  himself  to  indemnify  a  foreigner 
against  the  hostile  acts  of  the  insurer'' s  government. 

In  Lord  Mansfield's  time,  as  we  have  seen,  an  alien  enemy 
recovered,  in  some  instances,  of  British  underwriters  for  losses  by 
British  captures.^  But  such  a  claim  could  not  now  be  enforced, 
and  it  was  never  fully  and  distinctly  recognized  to  be  legal.'* 

916.  A  neutral  may  be  protected,  under  a  policy  made  in  a 
belligerent  country,  against  arrest  by  the  officers  of  such  country, 
on  groundless  suspicion  of  the  subject  insured  being  enemy  pro- 
perty. 

An  American  ship,  The  Hannah,  was  insured  in  England,  on  a 
voyage  from  New  York  to  Havre,  in  the  course  of  which  she  was 
arrested  by  a  British  cruiser,  and  carried  into  Bristol,  to  ascertain 
whether  she  had  French  property  on  board  ;  there  being  a  war  at 
the  time  between  England  and  France.  The  loss  occasioned  by 
this  detention  was  claimed  of  the  underwriters,  who  objected  that 


1  Simeon  v.  Bazett,  2  M.  &  S.  94.  v.  Staples,  1  T.  R.  Gil,  n.;  3  Doujr.  1; 

2  Walilcn  V.  riioenix  Ins.  Co.,  5  Gamba  v.  Lc  Mesurier,  4  East,  407  ; 
Johns.  .'JIG.  Kellner   v.  Le  Mesurier,  4  id.  396. 

3  Tliellusson  v.  Fcrgusson,  Doug.  This  ease  is  commented  upon,  7  East, 
346;  Eden  v.  Parkinson,  id.  732.  451.    Touteng  v.  Hubbard,  3  B.  &  P. 

4  Supra,  c.  3,  s.  2;  Eden  v.  Parkin-  291;  Glaser  v.  Cowie,  1  M.  &  S.  52, 
son,  Doug.  732;  Thellusson  v.  Fer-  where  Lubbock  v.  Potts,  7  East,  449, 
gusson,  id.  346.     See  also  Plantamour  is  cited. 


CHAP.  X.]        WHAT  RISKS   MAY   BE   INSURED   AGAINST.  515 

they  could  not  bind  themselves  to  indemnify  a  neutral  for  losses 
consequent  upon  this  detention  by  their  own  government.  Lord 
Ellenborough  said,  in  giving  the  opinion  of  the  court,  that  an 
"American  was  at  liberty  to  pursue  his  commerce  with  France, 
and  to  be  the  carrier  of  goods  for  French  subjects.  The  indem- 
nity sought  in  this  case  is  not  an  indemnity  to  an  enemy,  or  to  a 
neutral  forfeiting  his  neutrality  by  an  act  hostilely  done  by  him 
against  the  interests  of  Great  Britain,  but  an  indemnity  to  a  neu- 
tral, as  such,  against  the  consequences  of  an  act  innocently  and 
allowably  done  by  him,  in  the  exercise  of  his  own  neutral  rights, 
and  as  innocently  and  allowably,  to  a  certain  degree,  controlled 
and  interrupted  on  our  part,  in  the  exercise  of  our  rights  as  bellige- 
rents." And  on  this  ground,  that  the  detention  was  not  of  a  hos- 
tile character,  judgment  was  given  in  favor  of  the  assured. ^ 

917.  An  officer  of  a  vessel  may  be  insured  against  the  barratry 
of  the  other  officers,  or  the  master  or  men? 

917  a.  The  risk  in  bottomry  may  be  for  as  many  voyages  or 
passages  as  are,  bona  fide,  in  contemplation  by  the  parties.^ 


1  Barker  v.  Blakes,  9  East,  283.  2  Stone  v.  National   Ins.  Co.,    19 

See  also  Visger  v.  Prescott,  5  Esp.  Pick.  34. 

184;  Kellner  v.  Le  Mesurier,  4  East,  3  The  Mary,  4  Notes  of  Cases  in 

396.  Admiralty,  376. 


CHAPTER   XI. 

THE  VOYAGE.     DURATION   OF   THE   RISK. 

Sect.  1.  At  what  time  or  place  the  risk  I  Sect.  2.  Termination  of  the  risk, 
begins.  j  3.  Suspension  of  the  risk. 

SECTION'    I.       AT    WHAT    TIME    OR    PLACE    THE    RISK    BEGINS. 

918.  SixcE  the  underwriters  are  liable  only  for  losses  arising 
from  the  perils  insured  against,  and  within  the  time  for  which  the 
risk  is  to  continue,  the  policy  must  specify  ichat  risks  the  insurers 
assume,  ichen  those  risJcs  commence,  and  for  what  period  they  are 
to  continue,  or  by  what  event  they  are  to  be  terminated. 

Some  marine  ordinances  contain  regulations  in  respect  to  the 
time  when  the  risk  on  the  ship  or  goods  shall  begin  and  end.^ 
But  there  is  no  positive  regulation  by  law  on  this  subject  in  Great 
Britain  or  the  United  States,  nor  does  it  appear  that  any  such  is 
necessary. 

'•'The  risk  is  to  be  described  with  suitable  and  convenient  cer- 
tainty. When  the  insurance  is  for  a  term  of  time,  the  termini  are 
the  day  and  hour  when  the  insurance  commences  and  terminates. 
When  the  insurance  is  on  a  particular  voyage,  there  is  generally 
no  reference  to  any  time.  The  termini  are  to  be  expressed  in  the 
policy,  and  if  left  in  uncertainty  by  any  omission  or  blank,  the 
policy  is  void.'*"- 

Under  an  open,  running  policy  upon  shipments  on  vessels  on 
the  western  waters  or  from  the  Atlantic  ports  by  way  of  New 
Orleans,  for  six  months,  "indorsements  to  be  evidence  of  property 
at  the  risk  of  the  underwriters,"  the  assured  received  advice  of  a 
shipment  and  loss  at  the  same  time,  which  he  proposed  to  indorse. 
Justices  Topkins,  Napton,  and  Scott,  held  that  the  risk  did  not 

1  Code  dc  Commerce,  1.  2,  tit.  10,  2  Per  Sewall,  J.,  Manly  i-.  United 
n.  152.  Mar.  &  Fire  Ins.  Co.,  9  Mass.  R.  85. 


SECT.  I.]     AT   WHAT  TIME   OR  PLACE   THE   RISK   BEGINS.  517 

begin  at  all,  on  the  ground  that  tlie  policy  could  not  attach  by  in- 
dorsements made  after  notice  of  loss.^ 

If  a  ship  is  insured,  says  Molloy,  "from  London  to ," 

the  risk  will  not  attach  for  want  of  a  sufficient  description  when  it 
is  to  end.^ 

But  courts  do  not  require  a  very  minute  accuracy  in  the  descrip- 
tion of  the  risk  ;  and  it  is,  in  general,  sufficient,  if  the  intention  of 
the  parties,  in  respect  to  the  commencement  and  end  of  the  risk, 
can  be  satisfactorily  gathered  from  the  policy,  and  any  incidental 
error  or  inconsistency,  in  immaterial  circumstances,  will  not  defeat 
the  contract. 

919.  There  can  be  no  risk  until  the  assured  has  an  interest  in 
the  insured  subject. 

Accordingly,  if  the  policy  is  on  a  vessel  at  a  certain  place, 
which  the  assured  had  purchased  there,  the  insurance  can  take 
effect  only  from  the  time  of  the  purchase.^ 

920.  We  have  already  seen  that  the  risk  does  not  commence, 
the  policy  being  void,  in  case  of  concealment  of  material  facts,  or 
non-fulfilment  of  a  representation  or  warranty  requiring  fuffilment 
at  the  outset.^ 

921.  If  the  risk  is  described  to  commence  ^' on^^  a  certain  day, 
it  extends  to  all  losses  hap'pening  during  any  part  of  the  day  ;  but 
a  question  has  occurred  upon  the  construction  of  a  policy  ^'from" 
a  certain  day. 

The  life  of  Sir  Robert  Howard  was  insured  by  a  policy  dated 
on  the  3d  of  September,  "for  one  year  from  the  date"  thereof. 
He  died  on  the  3d  of  September  following.  Chief  Justice  Holt 
instructed  the  jury,  that  '"from  the  day  of  the  date'  excludes  the 
day,  but  'from  the  date'  includes  it."  ^ 

Whether  the  expression,  "  from  the  day  of  the  date,"  excludes 
that  day,  was   afterwards  very  elaborately  considered   by  Lord 


^  Edwards  v.  St.  Louis  Perpetual  Cas.  269  ;  and  see  Seamans  v.  Loring, 

Ins.    Co.,    7   Missouri   R.    (by  Bay)  1  Mason,  128. 

382.  4  Supra,  No.  6  76,  677,  764. 

2  Book  2,  c.  7,  s.  14.  5  Sir  Robert  Howard's  Case,  2  Salk. 

3  Steinback  v.  Rhinelander,  3  Johns.  6 25. 

VOL.  I.  44 


518  THE   VOYAGE.      DURATION   OF   THE   RISK.        [cHAP.  XI. 

Mansfield,  who  examined  all  the  previous  authorities  on  the  sub- 
ject, which  he  said  were  "so  many  contradictions  backwards  and 
forwards."  He  came  to  the  same  conclusion  which  Lord  Hard- 
wicke  had  come  to,  that  "the  construction  must  always  depend 
upon  the  subject-matter." 

It  was  held  that  "from  the  date,"  and  "from  the  day  of  the 
date,"  mean  the  same  thing.^ 

In  life  and  fire  policies,  and  marine  time  policies,  the  risk  is 
usually  specified  to  begin  at  a  certain  hour  of  a  certain  day. 

922.  A  policy  takes  effect  in  relation  to  the  day  of  its  date 
though  not  delivered  until  afterivards.^ 

923.  Insurance  of  goods  for  a  certain  voyage  on  board  of  a 
certain  vessel,  is  presumed  to  be  for  the  next  such  voyage  she 
makes,  and  will  not  apply  to  an  ulterior  one,  unless  this  presump- 
tion is  rebutted. 

Insurance  being  on  143  hogsheads  of  sugar,  and  all  lawful  goods 
on  the  steamer  B.,  at  and  from  New  Orleans  to  Louisville,  was 
held,  in  Louisiana,  to  attach  only  to  the  26  hogsheads  taken  on 
the  next  trip  of  the  boat,  and  not  to  those  subsequently  taken.^ 

924.  Postponing  the  risk  by  making  a  compulsory  intermediate 
passage  does  not  prevent  its  attaching,  if  the  voyage  is  pursued 
without  unnecessary  delay : 

As  where,  in  case  of  insurance  on  freight  from  Saffi  to  Lisbon, 
with  notice  that  the  vessel  had  to  make  two  prior  passages,  the 
crew,  being  afraid  of  Moorish  cruisers  off  SafB,  refused  to  sail 
thither,  and  compelled  the  master  to  make  an  intermediate  pas- 
sage to  Lisbon. "* 

925.  The  risk  may  be  assumed  by  the  underivriters  for  an 
anterior  period,  and  cover  losses  prior  to  the  date  of  the  policy^ 
provided  there  is  no  concealment  or  misrepresentation  by  either 
party.^ 

1  Pugh  V.  Leeds,  Cowp.  714.  4  Driscol  r.  Passmorc,  1  B.  &  P. 

2  Lightbody  v.  North  American  Ins.     200. 

Co.,  23  Wend.  18.  5  Barr  r.  Gibson,  5  Mees.  &  W. 

3  Courtnay  v.  Miss.  Fire  &  Mar.  Ins.     390. 
Co.,  12  La.  II.  233. 


SECT.  I.]      AT   WHAT   TIME   OR   PLACE   THE   RISK   BEGINS.  519 

For  this  purpose  the  clause  "lost  or  not  lost"  is  introduced. 
But  this  clause  is  not  necessary  ;  it  is  sufficient  if  it  appear  by  the 
description  of  the  risk,  and  the  subject  of  the  contract,  that  the 
policy  is  intended  to  cover  previous  losses. 

A  wager  being  made  in  the  terms  following :  "  I  promise  to  pay 
the  Earl  of  March  500  guineas  if  my  father  dies  before  Sir  W. 
Codrington  ;  "  signed  by  William  Pigot ;  a  corresponding  promise 
being  made  to  Mr.  Pigot  by  the  Earl  of  March ;  it  appeared  that 
Mr.  Pigot's  fath^  was  dead  at  the  time  of  making  the  wager. 
Lord  Mansfield  said:  "It  was  not  known  that  the  father  of  either 
of  them  was  then  dead.  Their  lives,  their  healths,  were  neither 
warranted  nor  excepted.  It  was  equal  to  both  of  them  whether 
one  of  their  fathers  should  be  then  sick  or  dead.  That  the  event 
had  happened  was  in  the  contemplation  of  neither  party.  The 
nature  of  such  a  contract,  and  the  manifest  intention  of  the  parties, 
support  the  verdict  of  the  jury,"  who  applied  the  contract  to  the 
previous  event.^ 

Insurance  was  made  in  June,  1825,  "lost  or  not  lost,  upon  the 
ship  Tarquin,  now  on  a  whaling  voyage  in  the  Pacific  Ocean, 
during  her  stay  there  and  until  her  return  to  Nantucket ;  begin- 
ning the  adventure  upon  said  cargo  as  aforesaid,  and  to  continue 
during  the  voyage  aforesaid,  until  landed."  The  Tarquin  had 
sailed  on  the  voyage  in  January,  1822.  One  question  was,  when 
the  risk  commenced  on  the  oil  taken,  no  question  being  made  as 
to  the  outfits.  Shaw,  C.  J.,  giving  the  opinion  of  the  court,  said : 
"To  construe  this  policy,  according  to  the  argument  of  the  de- 
fendants, so  as  to  make  the  risk  commence  on  the  day  of  its  date, 
it  would  be  necessary  to  limit  the  word  'voyage'  to  a  very  small 
part  of  the  voyage,  and  render  the  words  'lost  or  not  lost'  wholly 
inoperative.  The  word  'now,'  we  take  to  be  merely  descriptive, 
and  designed  to  identify  the  voyage.  We  are  of  opinion  that  the 
policy  would  attach  upon  the  oil,  from  the  time  the  vessel  first 
began  to  take  whales  in  the  course  of  this  voyage."  ^ 


1  Earl  of  March  v.  Pigot,  5  Burr.        2  Paddock  v.  Franklin  Ins.  Co.,  11 
2802.    See  also  Thompson  r.  Donald-     Pick.  227. 
son,  3  Esp.  63. 


520  THE    VOYAGE.      DURATION    OP   THE   RISK.        [CHAP.  XI. 

926.    Where  a  previous  loss  is  known  to  both  parties  it  is  no 


ground  of  objection  to  the  policy.^ 


Where  the  amount  of  the  loss  is  not  known,  or  that  of  salvage 
in  total  loss,  there  is  no  reason  why  indemnity  may  not  be  agreed 
upon,  any  more  than  where  the  loss  itself  is  not  known. 

927.  Under  a  policy  on  a  vessel  against  sea-perils  "  at"  a  place, 
as  distinct  from  a  voyage,  the  risk  commences  when  the  vessel  is 
at  the  place  in  reasonable  safety  ;^  and  on  the  goods  from  the  time 
of  their  being  exposed  to  sea-perils  within  the  conditions  of  the 
policy  in  respect  of  the  vehicle  and  custody  in  which  they  are. 

928.  The  7'isk  is  sometimes  described  to  be  at  and  from  certain 
ports,  for  the  imrposc  of  specifying  what  navigation  and  voyages 
are  intended,  and  not  for  marking  the  commencement  of  the  risk. 

A  policy  was  made  on  a  ship,  "to,  at,  and  from  one  or  more 
ports  on  the  globe,  for  one  year,  commenceing  the  risk  at  Barba- 
does  on  the  7th  of  December,  at  twelve  o'clock  at  noon,  to  con- 
tinue till  the  vessel  should  be  arrived  and  moored  at  anchor  twenty- 
four  hours  in  safety,  within  the  year  aforesaid."  The  vessel  was 
not  at  Barbadoes,  as  was  supposed  in  the  policy,  but  the  court 
said  her  being  so  was  immaterial,  and  that  the  risk  would  end  with 
the  year,  without  any  regard  to  her  being  in  any  port  at  that  time 
or  before ;  the  beginning,  duration,  and  end  of  the  risk  being  well 
enough  described,  without  any  regard  to  the  place  where  it  was  to 
commence,  or  to  the  vessel's  being  safe  in  port,  as  it  appeared  by 
the  policy  that  those  facts  were  not  intended  to  be  warranties.^ 

The  brig  Helen  was  insured  "at  and  from  Calais,  Maine,  on 
the  16th  day  of  July,  to,  at,  and  from  all  ports  and  places  to 
which  she  might  proceed  in  the  coasting  business,  for  six  months." 
The  brig  was  not  at  Calais  on  the  16th  of  July,  though  she  was 
there  subsequently,  during  the  six  months.  Neither  of  the  parties 
to  the  policy  knew  where  she  was  at  that  time.  The  Supreme 
Court  of  INIassachusetts  held  that  the  risk  attached,  for  "it  was  the 
clear  intent  of  the  parties  to  insure  on  time,  without  regard  to  the 
place  where  the  vessel  might  then  be,  but  with  regard  to  the  em- 


1  Mead  I'.  Davison,  3  Ad.  &  El.  303.        3  INIanly  v.  United  Mar.  &  Fh-e  Ins. 

2  Vide  supra,  No.  720,  et  scq.  Co.,  9  Mass.  11.  85. 


SECT.  I.]      AT   WHAT   TIME    OR   PLACE   THE   RISK   BEGINS.  521 

ployment  in  which  the  vessel  was  engaged,  namely,  the  coasting 
trade."  ^ 

A  policy  "on  a  cargo  of  salt  and  proceeds,  at  and  from  Rio  to 
Santos  and  two  other  ports,  and  at  and  from  either  to  a  port  of 
discharge  in  the  West  Indies,  Europe,  or  the  United  States,  until 
safely  landed,"  was  held  by  Mr.  Justice  Cranch,  to  attach  at  Rio 
on  a  cargo  which  had  been  laden  at  Cadiz." 

Where  a  prior  policy  on  time,  covering  the  value  of  the  ship, 
has  a  short  time  to  run,  and  a  subsequent  policy  is  made  for  one 
year,  at  and  from  B.  to  C,  containing  the  clause  as  to  prior  insur- 
ance, "  whether  for  the  whole  voyage,  or  from  one  port  of  loading 
or  discharge  to  another,"  and  the  ship  sails  from  B.  before  the 
prior  policy  expires,  the  risk  on  the  second  policy  will  commence 
on  the  ship  at  sea,  at  the  expiration  of  the  prior  policy.^ 

Goods  insured  from  Amelia  Island,  being  by  well  known  usage 
taken  in  at  Tygre  Island,  which  is  a  neighboring  one,  the  risk  was 
ruled  to  have  commenced  at  the  latter.* 

929.  A  risk  described  to  commence  at  a  "  port "  of  lading  of  a 
certain  coast  or  district  which  has  only  open  roadsteads,  will  com- 
mence at  such  a  lading  place  : 

As  from  a  "port  of  lading  in  Yucatan."^ 

930.  Though  the  vessel  sails  from  the  place  at  which  the  risk 
is  to  commence,  yet,  if  she  does  not  sail  on  the  voyage  insured,  the 
policy  ivill  not  attach. 

In  case  of  insurance  on  freight  "  at  and  from  Demerary,  Ber- 
bice,  and  the  Windward  and  Leeward  Islands,  to  London,"  the 
vessel,  under  a  verbal  agreement,  took  a  cargo  at  Demerary  to  be 
delivered  at  Berbice;  another  being  to  be  taken  there  for  London, 
each  at  the  usual  freight.  It  was  held  by  the  English  Court  of 
Common  Pleas,  that  a  loss  on  the  passage  to  Berbice  was  not 
covered,  the  voyage  for  which  the  freight  was  insured  not  having 
commenced.^ 

1  Martin  v.  Fishing  Ins.  Co.,  20  Pick.         *  Moxon  v.  Atkyns,  3  Camp.  200. 
389.  5  Delonguemere  v.  N.  Y.  Firemens' 

2  Gardner  v.  Columbian  Ins.  Co.  of  Ins.  Co.,  10  Johns.  120. 
Alexandria,  2  Cranch's  C  C.  R.  473.        6  ggUar  v.  M' Vicar,  4  B.  &  P.  23. 

3  Kent  V.  Manuf.  Ins.  Co.,  1 8  Pick.  1 9. 

44* 


522  TQE    VOYAGE.      DURATION    OF   THE   RISK.        [CHAP.  XI. 

931.  Insurance  at  or  from  a  port  can  commence  only  at  such 
port,  and  such  places  as  are  comprehended  as  part  of  it,  or  at  a 
place  at  which,  by  usage,  goods  insured  from  the  place  named  are 
loaded. 

Goods,  being  insured  "at  and  from  Gibraltar  to  Dublin,"  were 
shipped  at  ]Malaga,  and  the  vessel  did  not  put  into  Gibraltar. 
Chief  Justice  Gibbs,  and  the  other  justices  of  the  English  Com- 
mon Pleas,  held  that  the  policy  did  not  attach. ^ 

A  policy  was  made  on  goods  "at  and  from  Caermarthen  to 
London."  The  goods  were  in  fact  taken  in  at  Llanelly,  which  is  a 
member  of  the  port  of  Caermarthen,  but  having  a  distinct  custom- 
house. Caermarthen  lies  farther  up  the  river,  and  is  accessible 
only  by  an  intricate  navigation,  and  few  ships  clear  there,  except 
the  coasting  vessels  belonging  to  the  place.  Yet  the  court  decided 
that  the  risk  run  was  different  from  that  described  in  the  policy, 
one  terminus  of  which  was  Caermarthen.^ 

Under  a  policy  on  flour,  "at  and  from  Lyme  to  London,"  the 
flour  was  shipped  at  Bridport  Harbor,  which  is  a  member  of  the 
port  of  Lyme,  and  lies  about  nine  miles  eastward  of  Lyme,  and 
nearer  to  London,  and  a  vessel  bound  from  Lyme  to  London  must 
pass  Bridport.  The  court  said,  if  the  assured  could  have  proved 
a  usage  for  ships  to  load  at  Bridport,  upon  a  policy  at  and  from 
Lyme,  it  might  have  assisted  him,  but  the  whole  was  probably  a 
mistake,  the  parties  supposing  the  ship  would  sail  from  Lyme. 
Judorment  was  given  in  favor  of  the  underwriters.-^ 

A  similar  decision  has  been  given  in  New  York,  in  a  case  where 
the  actual  risk  was  strictly  a  part  of  that  described.  The  policy 
was  on  ship  and  freight  on  a  voyage  "at  and  from  Calcutta  to 
New  York,  with  liberty  to  touch  at  JMadras,  for  trade  and  to  take 
in  a  part  of  a  cargo."  The  vessel  did  not  go  to  Calcutta,  but 
took  in  the  whole  cargo  at  Madras.  Mr.  Justice  Thompson,  giv- 
ing the  opinion  of  the  court,  said  :  "It  is  impossible  to  say  that  a 
voyage  from  Madras  to  New  York,  is  the  same  as  a  voyage  from 

1  Park  V.  Hammond,  2  Marsh.  R.         2  Payne   i'.   Hutchinson,  2  Taunt. 
189  ;  6  Taunt.  495  ;  S.  C,  1  Holt,  80 ;     405,  n. 
4  Camp.  344.  3  Constable  v.  Noble,  2  Taunt,  403. 


SECT.  I.]      AT   WHAT   TIME    OR   PLACE   TEE   RISK   BEGINS.  523 

Calcutta  to  New  York.  The  adventure  is  to  begin  at  and  from 
Calcutta.  I  should  not  think  it  competent  for  the  assured  to  select 
at  pleasure  any  point  of  the  iter,  and  say  the  voyage  insured  shall 
commence  there."  ^ 

An  order  for  insurance  on  cargo  stated  that  the  vessel  when  last 
heard  from  was  on  the  passage  from  San  Bias  to  St.  Andreas,  and 
a  policy  was  thereupon  made  "as  per  order,  at  and  from  St.  An- 
dreas, with  liberty  of  two  ports  on  the  Spanish  Main,  and  at  and 
from  any  of  them  to  Baltimore."  The  vessel  was  wrecked  shortly 
after  leaving  San  Bias,  while  on  the  common  route  to  both  St. 
Andreas  and  Baltimore,  before  turning  off  to  the  former.  The 
assured  proposed  to  take  San  Bias  for  the  terminus  a  quo,  and 
claimed  for  the  loss  on  the  ground  that  the  risk  had  commenced, 
and  that  his  claim  was  not  prejudiced  by  a  mere  intention  to 
deviate.  But  the  court  in  Maryland  decided,  that  the  risk  could 
commence  only  at  St.  Andreas,  and  accordingly  had  not  com- 
menced.2 

932.  In  insurance  on  a  vessel  ^^ at^^  a  port,  the  risk  generally 
commences  from  the  time  of  its  being  there. 

It  has  been  held  in  one  case,  on  a  policy  on  a  ship  "at  and 
from  Cape  St.  Francois,"  that  "the  risk  commenced  after  she  had 
been  safely  moored  twenty-four  hours  at  that  port."^  But  Lord 
Hardwicke  was  of  opinion,  that  in  such  case  the  risk  commenced 
immediately  on  the  arrival  at  the  port.^  And  conformably  to  this 
opinion  it  has  been  decided  in  New  York,  Mr.  Justice  Kent  givino- 
the  opinion  of  the  court,  that  "'at  and  from,'  when  applied  to  the 
ship,  includes  the  period  of  her  stay  in  the  port,  from  the  time  of 
her  arrival  there."  ^ 

933.  Under  a  policy  at  and  from  a  place,  a  question  concern- 
ing the  commencement  of  the  risk  sometimes  arises,  from  the  extent 
of  the  place  named. 

A  policy  at  and  from  Jamaica,  is  held  to  attach  at  any  port  of 


1  Murray  v.  Columbian  Ins.  Co.,  4        3  Garrigues  v.  Coxe,  1  Binn.  592. 
Johns.  443.  4  i  Atkins,  548. 

2  Maryland  Ins.  Co.  v.  Bossiere,  9         5  Patrick  v.  Ludlow,  3  Johns.  Cas. 
Gill  &  Johns.  121.  10. 


524  THE   VOYAGE.      DURATION   OP   THE   RISK.        [CHAP.  XI. 

the  island,  and  to  protect  the  property  from  port  to  port  in  the 
island.^ 

It  is  a  matter  of  doubt,  in  some  cases,  when  a  vessel  is  to  be 
considered  to  be  at  a  place.  A  v^essel  being  insured  "  at  and  from 
Limerick,"  it  was  held  that  the  risk  began  while  the  vessel  lay  at 
Grass  Island,  nine  miles  below  the  town  of  Limerick,  but  within 
what  is  considered  to  be  the  port  of  that  place.^ 

Insurance  being  made  on  the  freight  of  a  vessel  to,  and  during 
her  stay  at,  the  "  port  or  ports  of  discharge  and  loading  in  India 
and  the  East  India  Islands,"  and  thence  to  Europe,  the  vessel 
took  in  her  homeward  cargo  at  the  island  of  Mauritius,  which  is 
classed  as  an  African  island  by  the  geographers,  and  also  by  the 
inhabitants  of  the  island.  But  evidence  was  admitted  to  show 
that,  in  mercantile  language,  it  was  considered  as  an  East  India 
island  ;  and  it  was  left  to  the  jury  to  say  whether  it  was  so  to  be 
considered,  who  found  for  the  assured."^ 

Insurance  was  made  on  goods  "at  and  from  Singapore,  Penang, 
Malacca,  and  Batavia,  to  a  port  of  discharge  in  Europe,  with  leave 
to  touch,  stay,  and  trade  at  any  ports  and  places  whatsoever  and 
wheresoever  in  the  East  Indies,"  he.  The  ship  sailed  from  Bata- 
via, about  four  hundred  miles  to  the  eastward,  to  Sourabaya,  and 
not  in  the  course  of  any  of  the  places  specifically  named  in  the 
policy,  or  to  Europe,  and  there  took  in  a  part  of  a  cargo,  and  re- 
turned to  Batavia  to  complete  her  loading.  It  was  held,  that  the 
risk  commenced  at  Sourabaya,  on  the  goods  put  on  board  there.'* 

934.  Under  a  policy  on  a  sJiip  ''at  and  from"  a  foreign  port, 
the  risk  is  held  no{  to  commence  till  she  is  there  in  safety. 

Lord  Eilenborough  says  :  "The  safety  required  to  give  a  good 
commencement  to  the  risk  on  the  ship,  is  a  physical  safety  from 
the  perils  insured  against,  and  not  a  freedom  from  political  dan- 
ger." ^ 

J  Cruikshank  v.  Janson,  2  Taunt.  ^  Hunter  r.  Leathly,  1  L.  &  W.  244 ; 
301.  Leathly  v.  Hunter,  7  Bing.  517. 

2  Bell  V.  Marine  Ins.  Co.,  8  Scrg.  &        5  Bell  v.  Bell,  2  Camp.  475. 
Ilawle,  98. 

3  Robertson   v.   Money,  1  Ryan  & 
Moody,  75. 


SECT.  I.]      AT    WHAT   TIME    OR   PLACE   THE   RISK   BEGINS.  525 

A  policy  being  made  on  a  ship  and  freight  at  and  from  St. 
Michael's  the  vessel  arrived  there  leaky,  and  not  fit  to  take  in  a 
cargo,  and  a  storm,  which  she  had  met  with  during  the  voyage, 
continuing  after  she  came  to  anchor,  she  was  driven  out  to  sea 
again  and  wrecked,  after  having  been  at  anchor  more  than  twenty- 
four  hours.  It  was  ruled  by  Lord  Ellenborough  that  the  risk  had 
not  commenced.^ 

935.  Where  the  insurance  at  and  from  a  yJace  for  a  specified 
voyage  is  on  a  ship  lying  in  the  port,  the  commencement  of  the 
risk  may  depend  upon  that  of  the  preparations  for  the  voyage. 

In  the  case  of  insurance  made  on  a  ship  and  cargo  "at  and 
from  Bergen,  in  Norway,  to  Boston,"  at  Providence,  in  Rhode 
Island,  on  the  7th  of  February,  18 J  4,  the  vessel  had  arrived  at 
Bergen  in  March,  1813,  as  prize  to  an  American  privateer.  The 
vessel  and  cargo  were  not  transferred  to  the  assured,  in  such  form 
as  to  give  him  an  insurable  interest  in  them,  until  October,  1814; 
and  then  all  thoughts  of  the  voyage  to  Boston  were  laid  aside,  and 
he  proposed  to  send  the  vessel  to  France,  but  afterwards  changed 
his  mind,  and  concluded  to  send  it  to  the  United  States^  on  which 
voyage  she  sailed  in  June,  1815,  and  arrived  in  Boston  in  August 
following.  As  to  the  commencement  of  the  risk  under  the  policy, 
if  it  commenced  at  all,  and  the  construction  of  the  words  "at  and 
from,"  Mr.  'Justice  Story  says :  "  If  the  vessel  has  been  a  long 
time  in  port,  without  reference  to  any  particular  voyage,  the  policy 
will  attach  only  from  the  time  that  preparations  are  begun  to  be 
made  with  reference  to  the  voyage  insured.  And  if  the  party  in- 
sured acquired  the  ownership  subsequent  to  such  time,  and  before 
the  date  of  his  policy,  then  the  policy  will  attach  only  from  the 
time  of  acquiring  such  ownership."  And  the  court  ruled,  that,  as 
the  delay  of  the  voyage  was  not  justified,  the  underwriters  could 
not  be  held,  and  "that,  as  to  them,  there  was  a  complete  non- 
inception  of  the  voyage  insured."  ^ 

A  ship  and  freight  were  insured  "  at  and  from  Pernambuco  or 
any  other  port  or  ports  in  the  Brazils,  to  London  ;  beginning  the 

'  Parmeter  v.  Cousins,  2  Camp.  235.     See   also  Grant  v.  King,  4  Esp.  R. 
2  Seamans  v.  Loring,  1  Mason,  128.     175. 


526  THE   VOYAGE.      DURATION   OF   THE   RISK.        [CHAP.  XI. 

adventure  upon  the  said  ship  on  the  termination  of  her  cruise,  and 
preparing  for  her  voyage  to  London."  The  ship,  having  given  up 
cruising,  went  to  Pernambuco  to  procure  a  cargo,  but,  not  being 
able  to  procure  one  there,  proceeded  to  St.  Salvador,  and  a  loss 
happened  before  her  arrival  at  the  latter  port.  A  question  was 
made  whether  the  risk  had  commenced  at  Pernambuco.  Chief 
Justice  Gibbs  said  :  "  The  object  of  the  policy  must  have  been  to 
secure  the  assured  from  all  risks  from  the  time  the  cruise  ended. 
It  has  been  objected,  that,  though  the  cruise  had  ended,  the  ship 
was  not  preparing  for  her  voyage.  I  think  that,  having  come  to 
Pernambuco  to  procure  a  cargo,  and  having  sent  an  officer  on 
shore  for  that  purpose,  she  must  be  considered  as  preparing  for  the 
voyage  within  the  words  of  the  policy,  and  that  therefore  the  policy 
had  attached."  ^ 

So,  where  a  policy  was  made  on  the  3d  of  September,  at  New 
York,  on  a  vessel  "  at  and  from  Guadaloupe  to  St.  Thomas's," 
and  at  the  time  of  subscribing  the  underwriter  was  informed  that 
the  vessel  was  at  Guadaloupe  on  the  28th  of  July,  where  she  had 
in  fact  been  for  a  long  time  before  ;  the  court  said,  that,  "  in  a 
case  like  this,  the  risk  does  not  commence  till  some  act  be  done 
towards  equipping  for  the  voyage,  or  on  the  day  on  which  she  is 
stated,  as  here,  to  have  been  in  safety  at  the  port  from  which  she 
was  to  sail."  ^ 

But  if  the  ship  needs  repairs  merely,  the  risk  will  commence 
notwithstanding  this  circumstance.^  The  repairs,  must,  however, 
be  made  within  reasonable  time,  and  if  there  is  any  unnecessary 
and  unreasonable  delay,  the  policy  will  no  doubt  be  forfeited,  on 
the  ground  of  a  deviation  or  enhancement  of  the  risk.  So,  if  all 
preparation  for  the  voyage  be  suspended,  the  risk  will  cease."* 

936.  Under  a  "policy  for  a  voyage  from  a  certain  place,  the 
risTc  li'ill  commence  if  the  vessel  sails  from  that  place  on  the  same 
voyage,  though  with  an  intention  to  deviate  in  the  course  of  the 
voyage  : 

1  Lambert  v.  Liddard,  1  Marsh.  R.  3  Motteux  v.  London  Ass.  Co.,  1 
140  ;  5  Taunt.  480.  Atk.  545. 

2  Kemble  v.  Bownc,  1  Caincs,  75.  4  Chitty  v.  Selwyn,  2  Atk.  359. 


SECT.  I.]     AT   WHAT   TIME   OR  PLACE   THE   RISK   BEGINS.  527 

As  where,  the  cargo  being  insured  from  Liverpool  to  London, 
the  vessel  sailed  with  an  intention  to  put  into  Southampton.^ 

937.  But  though  the  shijj  sails  from  the  specified  port,  if  she 
sails  on  a  different  voyage,  and  for  a  different  port  of  destination, 
the  risk  will  not  commence.^ 

A  vessel,  being  insured  "at  and  from  Cadiz  to  a  port  of  dis- 
charge in  St.  George's  Channel,"  was  driven  on  shore  and  lost  at 
Cadiz,  before  the  cargo  of  fish  which  she  had  brought  thither  was 
wholly  unloaded,  and,  accordingly,  before  any  preparation  had 
been  made  for  the  voyage  insured.  Before  she  was  lost,  the 
agents  of  the  assured  had  decided  to  despatch  the  vessel  directly 
for  Newfoundland  with  a  cargo  of  salt  from  Cadiz,  instead  of  send- 
ing her  to  Liverpool  for  such  a  cargo,  fearing  that  the  delay  would 
make  her  too  late  for  the  season  ;  and  had  so  advised  the  owners 
at  Glasgow  a  week  before  the  loss  happened.  The  decision  was 
in  favor  of  the  claim  for  the  loss  in  three  courts  successively  in 
Scotland,  which  was  reversed  in  the  House  of  Lords.  The  sround 
upon  which  Lord  Chancellor  Eldon  put  the  final  decision  was,  that 
the  insured  voyage  to  Liverpool  had  been  given  up.^ 

But  this  ground  does  not  seem  to  be  sufficient  ;  it  required  that 
the  risk  should  not  have  commenced,  and  that  the  assured  nii£ht 
have  recovered  back  his  premium,  or  that  the  underwriters  had 
been  discharged  by  the  delay  to  proceed  to  Liverpool ;  and  the 
circumstances  seem  to  have  justified  one  or  both  of  these  defences. 
If  the  risk  had  commenced,  and  the  right  to  retain  the  premium 
had  accrued,  the  assured  had  a  right,  notwithstanding  his  own 
intentions  or  those  of  his  agents,  to  the  protection  of  the  policy  so 
long  as  the  subject  was  practically  within  the  specified  risks. 

In  case  of  insurance  on  freight  *'  from  Odessa  to  England,"  the 
captain  sailed  with  an  ?igreement  to  put  into  London  or  Newcastle, 
his  ultimate  destination  being  for  Hamburg  or  Bremen.  The  ves- 
sel being  captured,  it  was  objected  that  she  had  not  sailed  on  the 
specified  voyage.  Opposite  judgments  having  been  given  in  two 
Scotch  courts,  the  case  was  finally  decided  in  the  House  of  Lords  in 


1  Hare  v.  Travis,  7  B.  &  C.  14.  3  Tasker  v.  Cunningham,  1  Bligh, 

9  Ibid.  87. 


528  THE    VOYAGE.      DURATION   OF   THE   RISK.        [CHAP.  XI. 

favor  of  the  assured.^  One  point  made  by  Messrs.  Park  and  Mar- 
shall, of  counsel  for  the  underwriters,  was,  that  no  freight  would 
have  been  due  at  London  ;  but  it  is  plain  that  the  whole  freight 
may  be  insured  for  any  part  of  a  voyage. 

938.  Under  a  policy  on  goods  ''at  and  from  "  a  place,  against 
marine,  river,  or  lake  risks,  the  risTc  begins  on  their  being  there  on 
board  of  the  vessel  by  which  they  are  to  be  transported,^  or  boats, 
where  that  is  the  customary  way  of  taking  them  on  board.^ 

939.  Whether  specifying  the  risJc  to  begin  "  on  the  loading  of 
goods  "  is  mere  description,  or  a  warranty  that  the  goods  shall 
be  loaded  at  the  port  named  1 

This  description  restricts  the  commencement  of  the  risk,  when 
it  has  any  effect,  and  the  jurisprudence  presents  divers  instances 
of  the  failure  of  insurances  under  this  description,  which  would 
have  taken  effect  under  the  more  general  one  "at  and  from." 

A  policy  was  made  on  goods  "at  and  from  Genoa,  from  the 
loading  to  equip  for  the  voyage:"  but  the  goods  had  been  put  on 
board  at  Leghorn.  The  policy  was  held  not  to  attach  in  this  case, 
because  the  event  on  which  the  risk  was  to  commence  had  not 
happened.  The  court  put  stress  upon  the  circumstance  that  the 
condition  of  the  goods  could  not  be  known. ^ 

Under  another  policy  on  goods  "  from  the  loading  thereof  on 
board  on  the  coast  of  Brazil,"  and  on  the  ship  in  the  same  man- 
ner;  and  no  goods  were  put  on  board  there,  but  the  ship  returned 
from  the  coast  of  Brazil  with  the  same  cargo  she  had  carried  thither 
from  the  Cape  of  Good  Hope  ;  the  court  decided  that  the  risk 
never  commenced  on  either  ship  or  cargo.^ 

A  similar  case  occurred  in  New  York.  It  related  to  a  policy 
on  goods,  "beginning  the  adventure  from  and  immediately  fol- 
lowing the  loading  thereof  at  Vera  Cruz."  The  vessel  not  being 
permitted  to  discharge  there,  returned  to  New  Orleans  with  the 
same  cargo  she  had  carried  out.  It  was  the  opinion  of  the  court, 
tiiat   the  event  had  not  occurred  on  which  the  risk  was  to  com- 


•  Hall  ?'.  Brown,  2  Dow,  3G7.  4  Hodson  v.  Richardson,  1  W.  Bl. 

2  Mellish  V.  AUnutt,  2  M.  &  S.  lOG.     4C3  ;  S.  C,  3  Burr.  1477. 

3  2  B.  &  P.  435.  5  Robertson  v.  French,  4  East,  130. 


SECT.  I.]      AT  WHAT   TIME   OR  PLACE  THE  RISK  BEGINS.  529 

raence.i  In  this  case  Mr.  Justice  Livingston  made  a  distinction 
between  a  policy  on  the  ship  and  one  on  the  cargo,  saying  there 
was  a  reason  why  in  these  circumstances  the  risk  on  the  cargo 
should  not  commence,  which  did  not  exist  in  regard  to  the  ship, 
for  the  ship  was  warranted  seaworthy  at  the  commencement  of 
the  risk,  whereas  there  was  no  similar  warranty  in  respect  to  the 
cargo;  the  loading  of  the  goods  he  therefore  thought  to  be  of  im- 
portance, as  their  condition  at  the  time  would  thereby  be  better 
known.  This  distinction  was  probably  suggested  by  the  above 
case  of  Hodson  v.  Richardson  ;  but  the  case  of  Robertson  v. 
French,  above  cited,  makes  no  such  distinction,  the  policy  in  that 
case  being  on  both  ship  and  goods,  and  the  risk  was  held  to  attach 
on  neither. 

The  distinction  seems  to  be  very  questionable,  for  the  assured 
in  a  policy  on  goods  must  prove  the  loss  to  have  happened  during 
the  risk,  and  the  insurers  are  not  liable  for  any  loss  that  cannot  be 
proved  to  have  happened  after  the  commencement  of  the  risk, 
which  is  equivalent  to  a  warranty  against  any  previous  damage  or 
defect.  If  the  decision  is  against  the  commencement  of  the  risk, 
whether  on  the  ship  or  cargo,  the  better  reason  seems  to  be,  that 
the  case  does  not  present  the  terminus  a  quo  specified  in  the  policy  ; 
or  that  the  loading  at  the  specified  port  is  warranted.  It  is  quite 
material  which  construction  is  adopted,  since,  if  the  phrase  is  con- 
sidered to  be  mere  description,  a  defect  may  be  supplied  by  other 
parts  of  the  policy. 

A  number  of  judgments  have  been  given  in  conformity  with  the 
opinions  above  cited.^ 

Where,  under  such  a  policy,  the  goods,  though  not  actually 
shipped  at  the  port,  from  the  loading  at  which  the  risk  was  to 
commence,  were  yet  overhauled  so  that  their  condition  was  satis- 
factorily ascertained,  the  court  still  held  that  the  risk  did  not  com- 
mence.^    In  this  case,  however,  the  court  thought  the  loading  at 


1  Graves    v.    Marine    Ins.    Co.,    2  Johns.  307 ;  Vredenburg  v.  Grade, 
Gaines,  339  ;    Scriba  v.  Ins.  Co.  of  4  id.  444,  n. 

North  America,  2  Wash.  C.  C.  R.  107.  3  Spitta  v.  Woodman,  2  Taunt.  416 ; 

2  Richards  v.  Marine  Ins.  Co.,  3  16  East,  188,  n. 

VOL.  I.  45 


530  THE   VOYAGE.      DURATION    OP   THE   RISK.        [CHAP.  XL 

the  port  where  the  risk  was  to  commence  was  a  material  circum- 
stance, and  in  effect  warranted  in  the  policy,  as  it  would  diminish 
the  risk  from  French  capture. 

In  another  case,  again,  in  which  a  similar  judgment  was  given, 
the  court  refers  to  the  circumstance  that  it  could  not  be  known 
whether  the  goods  had  been  damaged  previously  to  the  commence- 
ment of  the  risk.i 

In  a  policy  on  goods  at  and  from  L.,  the  risk  to  commence  at 
and  from  the  loading,  the  cargo  had  been  brought  thither  in  the 
same  vessel,  and  the  unloading  and  reloading  of  part  of  it  at  L., 
and  moving  and  examining  the  remainder  sufficiently  to  determine 
the  duties  payable  there,  was  held,  by  Lord  Ellenborough  and  his 
associates,  to  be  a  sufficient  loading.^ 

An  insurance  was  made  in  New  York  "upon  all  kinds  of  goods 
and  merchandises  laden,  or  to  be  laden,  on  board  of  the  R.,  begin- 
ning the  adventure  from  and  immediately  following  the  loading 
thereof  on  board  at  Cagliari."  On  the  arrival  at  that  place,  all 
the  cargo  then  on  board,  except  some  logwood,  was  hoisted  upon 
deck,  in  order  to  take  in  500  "salms"  of  salt,  which  was  the  only 
part  of  the  cargo  taken  on  board  there.  The  cargo  brought  to 
Cagliari  was  restowed,  and  the  ship  proceeded  on  the  voyage  in- 
sured, in  the  course  of  which  she  was  captured.  Mr.  Justice  Van 
Ness  gave  the  opinion  of  the  court.  He  said:  "The  plaintiff's 
right  to  recover  for  any  other  part  of  the  cargo  than  the  salt,  de- 
pends on  the  fact  whether  it  was  shipped  at  Cagliari  or  not.  The 
hoisting  the  cargo  out  of  the  hold  of  the  ship,  and  restowing  it, 
does  not  amount  to  a  loading  it  on  board  the  ship,  either  accord- 
ing to  the  words,  the  reason,  or  the  spirit  of  the  contract.  The 
policy  attached  therefore  only  upon  the  salt."  ^ 

But  if  in  this  case  the  goods  had  been  landed  upon  a  wharf, 
and  then  taken  on  board  again,  there  seems  to  be  no  ground  to 
doubt  of  this  being  a  "loading,"  within  the  terms  of  the  policy. 


1  Horneycr  v.  Lushlngton,  15  East,        3  Murray  v.  Columbian  Ins.  Co.,  11 
46 ;  S.  C,  3  Camp.  85.  Johns.  302. 

2  Nonncn  v.  lleid,  and  same  PlfT.  i\ 
Kettle  well,  16  East,  170. 


SECT.  I.]      AT   WHAT   TIME   OR   PLACE   THE   RISK   BEGINS.  531 

Under  a  policy  on  goods  "at  and  from  Gothenburg,  beginning 
the  adventure  on  said  goods  from  the  loading  thereof  on  board,"  a 
memorandum  was  added  to  the  policy,  stating  it  to  be  in  continu- 
ation of  five  former  policies,  specifying  them.  The  goods  had  been 
put  on  board  in  Virginia,  and  it  does  not  appear  that  they  had 
been  reloaded  at  Gothenburg,  but  rather  that  they  had  not.  Lord 
Ellenborough,  giving  the  opinion  of  the  court,  said,  that  "a  very 
strict,  and  certainly  a  construction  not  to  be  favored,  and  still  less 
to  be  extended,  was  adopted  in  Spitta  v.  Woodman.  If  there  be 
any  thing  to  indicate  that  a  prior  loading  was  contemplated  by  the 
parties,  it  will  release  the  case  from  that  strict  construction."  And 
this  was  considered  as  being  indicated  by  the  memorandum  above 
mentioned,  and  accordingly  it  was  held  that  the  risk  commenced  at 
Gothenburg.^ 

This  case  shows  that  a  loading  at  the  port  named  is  not  neces- 
sary to  fix  the  time  when  the  risk  begins,  for  the  risk  is  held  to 
have  attached,  though  there  was  no  loading  or  reloading  at  such 
port.  What  Lord  Ellenborough  intimated,  therefore,  in  Nonnen 
V.  Reid,  as  to  the  importance  of  reloading  for  the  purpose  of  fix- 
ing the  commencement  of  the  risk,  seems  in  this  last  case  not  to 
have  been  adhered  to  by  the  court. 

But  in  another  case  decided  in  the  Common  Pleas,  upon  a 
policy  on  goods  from  the  same  place,  in  which  the  commencement 
of  the  risk  was  described  in  the  same  words,  the  risk  was  held  not 
to  have  commenced,  as  the  goods  had  not  been  shipped  or  reloaded 
at  Gothenburg.  At  the  time  of  making  the  policy,  the  under- 
writers knew  that  the  goods  had  been  loaded  at  London,  but  the 
court  said,  "they  could  not  make  the  construction  of  a  written 
instrument  depend  on  the  knowledge  which  the  insurers  might 
happen  to  possess  of  the  facts."  ^ 

A  similar  decision  was  again  made  in  the  King's  Bench,  upon 
a  policy  on  goods  "at  and  from  Gothenburg,  beginning  the  adven- 
ture from  the  loading  thereof  abroad."  They  had  been  loaded  at 
Christiansand,  and  not  reloaded  at  Gothenburg.  Lord  Ellen- 
borough, in  giving  the  opinion  of  the  court,  said,  that  the  com- 

1  Bell  V.  Hobson,  16  East,  240.  9  Langhorn  v.  Hardy,  4  Taunt.  628. 


532  THE   VOYAGE.      DURATION   OP   THE   RISK.         [CIIAP.  XI. 

mencement  of  the  risk  must  be  supposed  to  have  been  described 
in  this  manner,  to  protect  the  insurers  from  liability  on  account  of 
previous  losses  ;  and  that  construing  the  words  "  from  the  loading 
the  goods  on  board  "  to  mean  the  same  as  "  from  the  time  of  their 
being  on  board"  at  the  place  named,  would  be  giving  them  no 
effect,  for  this  would  be  the  construction  without  any  such  words. ^ 
Yet  the  principle  which  governed  the  court  in  putting  this  con- 
struction upon  these  words  had  been  rendered  questionable,  at 
least,  in  a  former  case,  by  the  opinion  of  the  same  judge.  It  was 
upon  a  policy  on  goods  "at  and  from  Pernambuco  to  Maranham, 
and  at  and  from  thence  to  Liverpool,  beginning  the  adventure 
upon  the  said  goods  upon  the  loading  thereof  on  board  where- 
soever." The  goods  were  a  part  of  the  cargo  carried  outward 
to  Pernambuco,  a  loss  on  which  had  happened  on  the  voyage 
from  Pernambuco  to  Maranham.  It  was  decided  that  the  risk 
commenced  at  Pernambuco.  Lord  Ellenborough  said :  "  It  cer- 
tainly throws  some  difficulty  in  the  way  of  this  construction,  that 
it  may  probably  aid  in  covering  a  damage  which  happened  before 
the  commencement  of  the  risk.  But  when  we  consider  that  the 
assured  is  bound  to  prove  that  the  loss  happened  within  the  limits 
of  the  voyage  insured,  that  difficulty  is  in  a  great  measure  re- 
moved." ^ 

From  all  these  cases  it  is  not  easy  to  determine  the  construction 
of  a  policy,  in  which  the  risk  is  to  commence  on  the  loading  of  the 
goods  at  a  port  named.  If  it  be  considered  a  warranty  that  the 
goods  shall  be  loaded  at  such  port,  the  courts  seem,  in  some  of  the 
above  cases,  to  have  departed  from  the  usual  construction  of  ex- 
press warranties.  But  if  these  words  are  to  be  considered  as  merely 
description,  having  at  most  the  force  of  a  representation,  they  will 
not  affect  the  contract,  if  the  policy  provides  any  other  way  of 
ascertaining  the  time  when  the  risk  commences. 

These  discrepant  decisions  evidently  do  not  coincide  in  support 
of  any  general  proposition.  That  to  which  they  seem  to  be  the 
nearest  approximation,  and  which  may  be  adopted  without  a  de- 
parture from  any  general  principle,  is,  that 

>  Mellish  V.  AUnutt,  2  M.  &  S.  lOG.     2  Gladstone  v.  Clay,  1  M.  &  S.  418. 


SECT.  I.]      AT   WHAT   TIME    OR   PLACE   THE   RISK    BEGINS.  533 

This  specification  of  the  terminus  a  quo,  unless  it  appears  by 
the  policy  to  be  intended  as  a  warranty  of  the  loading  at  the 
designated  place,  is  to  be  taken  as  mere  recital,  description,  or 
intention  or  expectation,  being  at  most  an  implied  representation 
of  the  loading,  and  is  to  be  construed  accordingly.^ 

There  is  no  need  of  resorting  to  the  doctrine  of  warranty  to  pro- 
vide for  the  case  of  aggravation  of  the  risk  by  reason  of  the  cargo 
not  being  put  on  board  at  the  place  named,  which  is  mentioned  in 
some  cases,2  since  that  comes  appropriately  within  the  doctrine  of 
representation  and  concealment. 

A  more  recent  case  has  occurred  on  this  specification  of  the 
terminus  a  quo,  which  is  free  from  the  complexity  of  the  foreign 
political  relations  growing  out  of  the  wars  consequent  upon  the 
French  revolution  of  1789,  in  which  most  of  the  preceding  cases 
were  involved.  It  was  an  insurance  on  a  cargo  "from  the  load- 
ing thereof  aboard,"  on  the  coast  of  Africa.  A  total  loss  occur- 
red, while  a  part  of  the  outward  cargo  remained  on  board,  and  the 
question  was  whether  this  should  be  included  in  the  loss,  and  the 
King's  Bench  decided  that  it  could  not  be  so.  Lord  Tenterden, 
giving  the  opinion  of  the  court,  put  the  decision  upon  the  ground 
that  there  was  nothing  in  the  policy,  whether  in  the  description  of 
the  voyage  or  otherwise,  from  which  the  court  could  infer  the  in- 
tention to  include  any  part  of  the  outward  cargo. "^ 

The  proposition  above  laid  down  does  not  seem  to  me  to  be 
inconsistent  with  this  case,  nor  with  the  doctrine  that  the  policy  is 
to  govern  in  all  cases. 

940.  In  a  policy  upon  goods  loaded  from  a  wharf,  the  risk 
usually  commences  with  the  responsibility  of  the  owners  and  mas- 
ter, and  when  that  of  the  wharfinger  ceases.^ 

941.  Whether,  under  a  policy  on  goods  on  board  of  a  certain 


1  See  Coggeshall  v.  American  Ins.  3  Rickman  v.  Carstairs,  5  B.  &  Ad. 
Co.,  3  Wend.  283,  cited  infra.  651. 

2  Spitta  I'.  Woodman,  2  Taunt.  41G;  4  See  Corban  v.  Downe,  5  Esp.  N. 
S.  C,  16  East,  188,  n. ;  Hodson  v.  Rich-  P.  41. 
ardson,lW.B1.463;S.C.,3Burr.463. 

45* 


53-i  THE   VOYAGE.      DURATION    OF   THE   RISK.        [CHAP.  XI. 

shijj,  the  risk  u-ill  commence  in  boats  by  ivhich  they  are  brought 
to  the  shij),  will  depend  upon  the  hydrographical  character  of  the 
port  or  coast,  the  usage  as  to  loading,  and  upon  the  boats  being 
those  of  the  vessel,  or  public  lighters,  or  those  of  the  shipper,  and 
upon  the  goods  being  in  charge  of  the  master  and  crew,  or  of 
boatmen  employed  by  the  shipper  1 

A  policy  was  made  in  October,  "on  all  kinds  of  lawful  goods 
and  merchandise,  laden  or  to  be  laden  on  board  of  the  ship  Clin- 
ton, for  and  during  six  months,  commencing  on  the  10th  of  July, 
lS-26,  beginning  the  adventure  on  such  goods  from  and  immedi- 
ately following  the  lading  thereof  on  board  of  the  said  vessel,  from 
the  10th  of  July,  and  so  shall  continue  until  the  said  goods  shall 
be  safely  landed  on  the  lOth  of  January,  15-27;"  with  an  agree- 
ment indorsed  to  extend  the  policy  two  months  for  an  additional 
premium.  The  vessel  was  engaged  in  a  trading  voyage  on  the 
western  coast  of  South  America,  where  a  basket  of  "  plata  pina" 
(virgin  silver)  was  lost  from  one  of  the  flat-boats  or  rafts,  called 
•'balsas,"  employed  by  the  assured  to  bring  it  to  the  vessel,  this 
being  the  customary  way  of  bringing  the  cargo  to  vessels.  The 
Supreme  Court  in  iVew  York  held,  that  the  risk  commenced  on 
the  goods  on  board  on  the  10th  of  July,  and  on  those  afterwards 
loaded,  from  their  coming  within  the  description  of  the  terminus  a 
quo  in  the  policy,  and  that  the  risk  commenced  on  the  '"balsas" 
to  the  same  effect  as  if  the  articles  had  been  on  board  of  the  ship, 
on  the  ground  that  this  was  the  customary  way  of  taking  on  board 
cargo  on  that  coast.^ 

942.  Policies  not  unfrequently  have  different  termini  a  quo 
and  ad  quern  for  different  parts  of  the  cargo  : 

As  where  goods  are  insured  from  the  lading  thereof  on  board  of 
a  vessel  that  has  liberty  to  touch  and  trade  at  different  ports,  that 
is,  to  discharge  and  take  in  goods.  In  such  case  a  policy  exclu- 
sively on  the  homeward  cargo  from  loading,  will  commence  on 
each  part  successively  as  it  is  put  on  board,  and  one  exclusively 


'  Coggeshall  r.  American  Ins.  Co.,  Tierney  i*.  Ethcrington,  id.  348 ;  and 
3  Wend.  283.  The  court  cites  Polly  Parsons  v.  ]SLiss.  Fire  &  Mar.  Ins.  Co., 
r.  Royal  Exch.  Ass.  Co.,  1  Burr.  341 :     6  Mass.  R.  197. 


SECT.  I.]      AT   WHAT  TIME   OR   PLACE   THE   RISK   BEGINS.  535 

on  the  outward  cargo  will  terminate  on  the  several  parcels  of  goods 
as  they  are  successively  discharged. ^ 

943.  The  risk  under  a  policy  on  freight  cannot  commence  until 
the  interest  has  accrued.^ 

Where  the  interest  in  freight  has  accrued  previously  to  the  time 
from  which  the  insurers  are  to  take  the  risk,  the  commencement 
of  the  risk  on  this  interest  is  determined  by  the  same  principle 
upon  which  it  depends  in  the  case  of  an  insurance  of  the  ship  or 
goods. 

944.  Ill  order  to  the  commencement  of  the  risk  on  freight,  the 
vessel  must  be  on  the  way  towards  the  place  for  loading  the 
cargo,  or,  if  she  is  at  the  loading  port,  must  he  in  preparation 
for  loading. 

Where  the  policy  was  on  freight  at  and  frotn  Algoa  Bay  to 
London,  the  vessel  arrived  at  Algoa  Bay,  where,  having  discharged 
her  cargo,  excepting  about  seventy  tons,  she  was  wrecked.  The 
captain  said  that  he  was  ready  to  begin  to  take  on  board  his  home- 
ward cargo  at  the  time  of  the  vessel  being  wrecked,  it  being  neces- 
sary to  keep  on  board  some  of  the  outward  cargo  to  ballast  the 
ship.  The  jury  were  instructed  by  Lord  Lyndhurst,  C.  B.,  that 
the  risk  on  the  policy  had  attached  if  the  master  was  ready  to  be- 
gin to  take  on  board  his  homeward  cargo. ^  That  is  to  say,  where 
the  risk  on  freight  is  to  commence  "at"  a  place,  it  will  commence 
as  soon  as  the  assured  has  that  interest  at  that  place.^ 

Under  a  policy  on  freight,  "beginning  the  adventure  on  said 
freight  from  and  immediately  following  the  loading  thereof  on 
board  said  vessel,"  the  risk  was  held  not  to  commence  until  the 
vessel  had  begun  to  load.^     And  the  loss  of  freight  by  the  loss  of 


^  Violett  V.  Allnutt,  3  Taunt.  419 ;  taches  successively  on  the  return  car- 
Grant  V.  Paxton,  1  Id.  463  ;  Same  v.  goes.     See  supra,  c.  3,  s.  12. 
Delacour,id.466  ;  Barclay  v.  Stirling,  2  vide  supra,  c.  3,  s.  11. 
5  M.  &  S.  6  ;  Hunter  v.  Leathley,  10  ^  Williamson  v.  Innes,  8  Bing.  81,  n. 
B.  &  Cr.  858 ;  S.  C,  7  Bing.  517,  are  See  Inglis  v.  Vaux,  3  Camp.  437. 
all  cases  of  leave  to  trade  at  different  ^  See  also  Flint  v.  Fleming,  1  B.  & 
ports,  and  in  the  ordinary  policies  on  Ad.  45  ;  1  L.  &  W.  257. 
■whaling  voyages,  the  Insurance  ceases  ^  Gordon  v.  Am.  Ins.  Co.  of  N.  Y., 
successively  on  the  outward,  and  at-  4  Denio,  360. 


536  THE   VOYAGE.      DURATION   OF   THE   RISK.        [CHAP.  XI. 

the  vessel  in  the  port  of  Canton,  while  wailing  for  a  cargo  that 
had  been  engaged,  was  held  not  to  be  covered  under  that  descrip- 
tion. 

Under  a  policy  on  freight  from  A  to  B,  to  take  a  cargo  at  the 
latter  place  for  C,  the  risk  on  the  whole  freight  to  C  commences 
on  the  vessel's  sailing  empty  from  A.i 

945.  If  the  policy  on  any  subject  is  '^from,"  instead  of  "  at 
and  from"  a  place,  the  risk  begins  at  the  time  of  the  vessel's 
sailing ;  that  is  to  say,  at  the  time  of  weighing  anchor,  and  break- 
ing ground  for  the  voyage,  with  all  the  preparations  completely 
made.^ 

946.  In  a  policy  on  ships  "from  "  a  port  which  has  an  out- 
port  at  a  considerable  distance,  and  vessels  of  the  same  size  usually 
take  in  part  of  the  cargo  at  the  port,  and  the  remainder  at  the  out- 
port,  the  risk  commences  on  sailing  from  the  former. 

Thus,  under  a  policy  "from  Amsterdam,"  the  risk  is  assumed 
between  that  port  and  the  Texel,  and  covers  a  loss  while  lying  in 
the  Texel  Roads.^ 

947.  Where  the  policy  does  not  attach  at  the  outset  for  want 
of  a  subject  coming  within  the  description  in  the  policy,  an  in- 
dorsement of  liberty  to  touch  at  another  port  will  not  cause  it  to 
attach,  the  underwriters  not  knowing  that  the  risk  had  not  com- 
menced.^ 

SECTION    II.       TERMINATION    OF    THE    RISK. 

948.  All  policies,  either  expressly  or  by  implication,  stipulate 
for  the  beginning,  or  terminus  a  quo,  and  end,  or  terminus  ad 
quEM,  of  the  risk. 

949.  Life  and  marine  policies  frequently,  and  fire  policies 
usually,  are  made  for  a  certain  period  of  time,  from  a  certain  day, 

1  Hodgson  I'.  Miss.  Ins.  Co.,  2  La.  As  to  what  is  "  sailing,"  see  c.  9, 
II.  341.  s.  3. 

2  I'otliicr,  Ins.  a.  C3 ;  Thellusson  v.  3  Mcy  v.  South  Carolina  Ins.  Co., 
Fcrgusson,  Doug.  31G;  Same  v.  Sta-  3  Brevard's  Const.  R.  329. 

pies,  id.  351,  n.;  Audley  v.  DuHT,  2  B.  ^  Scriba  v.  Ins.  Co.  of  North  Ame- 
&  r.  HI ;  Sellar  v.  M'Vicar,  4  id.  23.     rica,  2  Wash.  C.  C.  R.  107. 


SECT.  II.]  TERMINATION   OF   THE   RISK.  537 

or  from  a  certain  hour  of  a  certain  day ;  and  these  are  denomina- 
ted TIME  POLICIES,  or  TERM  POLICIES. 

In  such  a  policy,  the  time,  as  to  the  commencement  and  termi- 
nation of  the  risk  at  any  day  or  hour,  is  to  be  reckoned  at  the 
place  where  the  policy  is  made,  in  whatever  other  place  the  sub- 
ject may  be,i  unless  the  time  at  another  place  is  referred  to  in  the 
policy  in  this  respect.^ 

950.  The  ultimate  limit  of  the  risk,  or  terminus  ad  quern,  in 
policies  other  than  those  for  a  certain  time,  in  some  event,  as  the 
death  of  the  party  insured,  arrival  of  ship  at  a  certain  place,  or 
discharge  of  a  cargo. 

It  is  sometimes  agreed  that  the  risk  shall  end  or  be  prolonged 
at  the  election  of  one  or  the  other  party  :  ^ 

As  a  bottomry  risk  to  the  first  port  the  vessel  may  make :  ^ 

Or  the  liberty,  in  a  bottomry  bond  for  three  years,  to  reduce 
the  amount  by  payment.^ 

Insurance  being  for  six  months  on  a  ship  "bound  on  a  voyage 
from  B.  to  M.,"  with  liberty  of  a  policy  for  six  months  more  at  a 
certain  premium  for  that  period,  Mr.  Justice  Cranch  ruled  that  the 
risk  continued  during  the  second  six  months  on  another  voyage, 
that  to  M.  having  been  performed  during  the  first  six  months.^ 

The  duration  of  the  risTc  is  sometimes  put  in  the  alternative. 

A  respondentia  loan  being  on  a  risk  from  N.  to  C.  and  back  to 
N.,  to  be  paid  on  arrival  at  N.,  or  at  the  end  of  eighteen  months, 
whichever  might  first  happen,  it  was  held  that  the  subsequent  con- 
sent of  the  lender,  that  the  vessel  might  visit  other  ports,  did  not 
enlarge  the  period  of  the  risk,  which  was  held  to  terminate  at  the 
end  of  eighteen  months.^ 

A  bottomry  loan  being  for  an  India  voyage  not  exceeding  thirty- 


1  Walker  v.  Protection  Ins.  Co.,  29  4  The  Jane,  1  Dod.  Ad.  R.  461. 
Maine  R.  317.  5  Thorndike  v.  Stone,  11  Pick.  R. 

2  I  do  not  know  of  any  law  limiting  183. 

the  period  of  time  policies  in  any  of  6  Stuart  v.  Columbian  Ins.  Co.  of 

the  States,  like  35  Geo.  III.  c.  63,  s.  Alexandria,  2  Cranch's  U.  S.  Dist.  Ct. 

12,  limiting  time  policies  to  one  year.  R.  442. 

3  Sullivan  v.  Mass.  Mut.  Fire  Ins.  7  Niagara  Ins.  Co.  v.  Searle,  2  Hall's 
Co.,  2  Mass.  R.  318.  R.  22. 


538  THE    VOYAGE.      DURATION    OP   THE   RISK.        [CHAP.  XI. 

six  months,  the  ship  was  detained  in  India,  by  the  Mogul,  until 
after  the  end  of  that  period,  and  was  afterwards  captured  on  its 
homeward  voyage.  Lord  Hardwicke  decided  that  the  risk  had 
terminated  and  the  bond  become  absolute,  at  the  end  of  the  thirty- 
six  months.^ 

951.  All  policies  have  express  and  implied  conditions  for  the 
termination  of  the  risk  at  a  time  short  of  the  terminus  ad  (Juem, 
whether  the  ultimate  limitation  is  a  certain  time  or  a  certain  event. 

952.  The  termination  of  the  risk  by  non-compliance  with  a  re- 
presentation or  u-arranty,  after  the  risk  has  commenced,  has  been 
considered  under  those  heads,  and  that  by  deviation  is  to  be  con- 
sidered subsequently. 

The  payment  of  the  premium  is  the  most  frequent  condition  of 
the  continuance  of  the  risk  in  life  and  fire  policies.  Under  the 
provision  for  the  termination  of  a  fire  policy,  if  the  premium  shall 
not  be  paid  for  its  continuance  within  fifteen  days  after  the  expira- 
tion of  the  year,  the  policy  will  be  continued  if  the  premium  is 
paid  within  that  time,  though  a  loss  may  have  taken  place  in  the 
mean  time,  after  the  year  has  expired.- 

Some  fire  policies  have  a  provision,  that  in  case  of  alterations  of 
the  insured  building,  or  additions  to  it,  or  the  erection  of  others 
within  a  certain  distance,  the  underwriters  may,  at  their  election, 
cancel  the  policy,  returning  premium  pro  rata. 

953.  It  is  often  provided,  that  the  risJc  may  be  continued  or 
renewed  from  time  to  time,  by  the  assured's  paying  the  premium 
at  successive  periods,^  or  complying  with  other  specified  condi- 
tions. 

A  policy  was  made  on  a  vessel  "from  Salem  to  any  place  or 
places,  backwards  and  forwards,  round  the  globe  one  or  more  times, 
during  her  stay  at  all  such  places,  until  her  return  to  the  United 
States,"  at  a  certain  premium  per  month  ;  it  being  a  voyage  for 
seals  and  oil.    It  was  insisted,  on  the  part  of  the  insurers,  that  the 


1  Ingleden  r.  Foster,  4  Vin.  Abr.  3  Salvin  i\  James,  6  East,  571 ;  S.  C. 
281 ;  S.  C,  Marsh.  Ins.,  2d  ed.  751.  2  Smith,  646.     See  c.  1,  s.  9. 

2  M'JJonnell  f.  Carr,  Hayes  &  Jones's 
(Irish)  R.  257. 


SECT.  II.]  TERMINATION   OF   THE  RISK.  539 

duration  of  the  risk  ought  to  be  limited  by  the  usage  of  such  voy- 
ages, otherwise  it  might  continue  as  long  as  the  vessel  should  exist 
as  such.  The  court  said  they  saw  no  objection  to  its  so  continu- 
ing.' But  in  general  the  continuance  of  the  risk  is  absolutely 
limited  in  the  policy  by  some  time,  or  place,  or  event. 

Under  a  provision  to  continue  the  risk,  if  the  vessel  should  be 
at  sea  at  the  end  of  a  year,  "until  arrival  at  a  port  of  discharge," 
the  vessel  was  captured  and  carried  into  England,  under  the  pre- 
tence that  she  was  bound  to  an  enemy's  port,  and  was  detained  at 
Bristol  at  the  expiration  of  the  year,  whence,  after  being  released, 
she  pursued  her  voyage.  It  was  objected  to  the  continuance  of 
the  risk,  that  the  vessel  was  not  "at  sea"  at  the  expiration  of  the 
year.  Chief  Justice  Parker,  giving  the  opinion  of  the  court,  said  : 
"  A  vessel  is  considered  '  at  sea '  within  the  common  meaning  of 
the  term,  while  on  the  voyage,  although  during  a  part  of  the  time 
she  is  necessarily  within  some  port."^ 

Under  a  policy  on  a  vessel  for  a  year,  to  be  continued,  if  she 
should  be  at  sea  at  the  end  of  the  year,  to  her  port  of  destination 
in  the  United  States,  her  destination  at  the  end  of  the  year  was 
from  Rotterdam  to  Newcastle,  and  thence  to  New  York.  It  was 
held  in  New  York  that  the  risk  continued  to  the  latter  place. ^ 

A  vessel  was  insured  for  one  year  from  the  6th  of  October, 
1834,  and  if  then  "at  sea,"  as  expressed  in  one  policy,  or  "on  a 
passage,"  as  expressed  in  another,  the  risk  was  "to  continue  until 
her  arrival  at  her  port  of  destination  and  discharge."  On  the  25th 
of  September,  1835,  the  brig  got  under  way  at  Bangor,  with  her 
full  cargo  on  board  ready  to  proceed  on  her  voyage  to  the  United 
States,  and  dropped  down  several  miles  in  the  Straits  of  Menai, 
when  she  came  to  anchor  on  account  of  contrary  winds.  She 
afterwards  attempted,  for  several  successive  days,  to  proceed  on 
her  voyage,  but  did  not  get  out  of  the  Straits  and  pass  off  the  pilot- 
ground  until  the  8th  of  October,  the  second  day  after  the  expira- 


1  Cleveland   v.  Union  Ins.  Co.,  8         3  Union  Ins.  Co.  v.  Tysen,  3  Hill, 
Mass.  R.  308.  118. 

2  Wood  V.  New  England  Mar.  Ins. 
Co.,  14  Mass.  R.  31. 


540  THE   VOYAGE.      DURATION   OP   THE   RISK.        [CHAP.  XI. 

tion  of  the  year.  The  question  was  made  whether  she  was  "at 
sea"  or  "on  a  passage,"  on  the  6th  of  October,  within  the  mean- 
ing of  the  policies,  so  that  the  risk  continued.  Shaw,  C.  J. : 
"The  term  'at  sea'  is  used  in  contradistinction  to  arrival  in  port. 
If  the  vessel  has  sailed  or  commenced  a  passage,  she  must  be  con- 
sidered to  be  '  at  sea,'  within  the  meaning  of  this  clause.  When 
a  vessel  quits  her  mooring,  in  a  complete  readiness  for  sea,  and  it 
is  the  intention  of  the  master  to  proceed  on  the  voyage,  and  she  is 
afterwards  stopped  by  head  winds,  and  comes  to  anchor,  still  in- 
tending to  proceed  as  soon  as  the  wind  and  weather  will  permit, 
this  is  a  sailing  on  the  voyage."  And  it  was  held  that  the  vessel 
was  at  sea  within  the  meaning  of  the  policy  on  the  6th  of  Octo- 
ber. And  the  expressions  "at  sea,"  and  "on  a  passage,"  were 
considered  to  be  equivalent  to  each  other.^ 

A  vessel  being  insured  in  Philadelphia  for  a  year,  with  liberty 
of  the  globe,  and,  "if  at  sea  at  the  end  of  the  year,"  the  risk  "to 
continue  at  the  same  rate  of  premium  till  arrival  at  her  port  of 
destination  in  the  United  States,"  was  at  the  end  of  the  year  at 
sea  on  a  passage  from  Rio  Janeiro  to  the  island  of  Jersey.  Hav- 
ing sustained  damage  subsequently  on  the  same  passage,  she  put 
into  Falmouth,  in  England,  for  repairs,  and  being  repaired,  sailed 
for  Altona,  and  there  delivered  her  cargo  and  took  another  on 
freight  for  New  Orleans,  where  she  arrived.  In  a  suit  for  loss  by 
the  damage  sustained  after  the  end  of  the  year,  the  assured  con- 
tended that  the  risk  continued  until  her  arrival  at  New  Orleans. 
The  underwriters,  on  the  other  hand,  insisted  that  the  risk  termi- 
nated at  the  end  of  the  year,  on  the  ground  that  she  was  not  at 
that  time  on  a  voyage  to  the  United  States.  The  court  was  of 
this  latter  opinion,  and  set  aside  the  verdict  which  had  been  ren- 
dered for  the  assured.2 

On  the  new  trial,  the  assured  offered  evidence  that,  according 
to  usage  and  the  common  understanding  in  Philadelphia  as  to 
such  a  provision,  the  risk  continued,  if  the  vessel  was  at  sea  at  the 
end  of  the  year,  on  whatever  destination  she  was  bound,  until  her 

1  Bowcn  V.  IIoj)e  Ins.  Co. ;  Same  v.  2  Eyre  v.  Marine  Ins.  Co.,  6  Wbart. 
Merchants'  Ins.  Co.,  20  Pick.  275.  247. 


SECT.  II.]  TERMINATION   OF  THE   RISK.  541 

arrival  in  the  United  States.  This  testimony  was  ruled  out  by  the 
presiding  judge.  The  case  being  again  brought  before  the  court, 
it  was  held  that  the  evidence  was  admissible.  In  respect  to  the 
objection  that,  by  the  construction  contended  for  and  proposed 
to  be  established  by  such  testimony,  the  assured  might  prolong 
the  risk  indefinitely,  so  long  as  the  ship  should  last,  Mr.  Justice 
Rogers,  who  gave  the  decision  of  the  court,  remarked,  that  it  was 
competent  for  the  parties  to  make  such  a  contract  if  they  chose  to 
do  so.^ 

A  vessel  insured  with  the  provision  to  continue  the  risk  if  she 
should  be  at  sea  at  the  end  of  six  months,  was  then  at  St.  Thomas, 
in  the  West  Indies,  repairing,  having  sustained  damage  on  her  pas- 
sage thither,  to  take  a  cargo  there  for  New  York.  The  Supreme 
Court  of  New  York,  held  that  the  risk  had  terminated,  the  vessel 
not  being  then  at  sea,  within  the  meaning  of  the  policy .^ 

The  vessel  is  "at  sea"  within  the  stipulation,  if  she  has  "sailed" 
on  a  passage,  as  distinguished  from  "departing"  from  a  port,^  that 
is,  if  she  is  ready  to  proceed  and  has  broken  ground,  though  she 
has  made  little  or  no  progress,  and  though  she  may  be  in  a  river 
or  canal  from  which  she  is  to  proceed  to  sea.  It  was  so  held  in  the 
case  of  a  vessel  insured  for  a  year  from  the  8th  of  October,  and  if 
at  sea  at  the  end  of  that  period,  "the  risk  to  continue  till  her  arri- 
val in  the  United  States  at  the  same  rate  of  premium."  It  was  at 
Rotterdam  near  the  end  of  the  year,  and  the  master,  not  finding 
freight  there,  decided,  in  pursuance  of  his  instructions,  to  go  to 
Newcastle-upon-Tyne,  and  thence  to  New  York.  The  vessel 
sailed  on  the  canal  to  the  river  Meuse  on  the  5th  of  October,  and 
all  her  papers  were  made  out,  and  she  was  ready  to  depart,  hav- 
ing only  to  take  a  clearance  at  Helvoetsluys.  Owning  to  adverse 
winds,  she  did  not  proceed  until  the  Sth,  and  reached  Helvoetsluys 
on  the  lOlh,  where  she  was  detained  until  the  26th.  It  was  de- 
cided in  New  York  that  the  risk  continued.'^ 

'  S.  C,  5  "Watts  V.  Serg.  116.  3  yide   supra,  for   the   distinction, 

2  Burrows  v.  Turner,  24  "VVend.  276,  c.  9,  s.  3,  No.  777. 

in  the  Supreme  Court;  also  Hutton  v.  4  Union  Ins.  Co.  v.  Tysen,  3  Hill, 

American  Ins.  Co.,  7  Hill,  321,  in  the  108. 
Court  of  Errors. 

VOL.  I.  46 


542  THE    VOYAGE.      DURATION   OF   THE   RISK.        [CHAP.  XI. 

954.  Insurance  on  a  vessel  until  its  return  to  a  place,  does  not 
terminate  until  its  arrival  in  the  harbor  proper  of  such  place. 

A  ship  was  insured  for  a  premium,  at  a  certain  rate  per  annum, 
"at  and  from  Boston  to  all  ports  and  places  on  the  globe,  and 
until  her  return  to  Boston,  not  exceeding  two  years."  Slie  sailed 
from  the  coast  of  Brazil  for  Boston,  and  on  arriving  in  Boston 
Bay,  below  the  harbor,  within  the  two  years,  was  ordered  by  the 
owner  to  put  into  Salem,  at  which  port  she  accordingly  put  in,  for 
the  purpose  of  being  repaired.  It  was  held  that  the  risk  did  not 
terminate  on  the  arrival  of  the  ship  in  Salem  ;  and  that  the  ship's 
sailing  for  Boston  under  such  a  policy  did  not  limit  the  risk,  from 
the  time  of  her  so  sailing,  to  a  voyage  to  Boston  ;  but  that  the 
destination  of  the  ship  might  be  altered  at  any  time  before  her 
arrival  at  Boston,  and  the  risk  under  the  policy  would  still  con- 
tinue.^ 

955.  Where  a  policy  is  to  terminate  on  the  ship  having  arrived 
at  a  certain  island  or  district,  and  been  moored  twenty-four  hours 
in  safety y  it  terminates  at  the  first  port  within  such  limits  at  which 
the  master  voluntarily  arrives,  and  so  remains  moored. 

Under  a  policy  on  a  ship  and  cargo,  "  from  Georgia  to  Jamaica  " 
generally,  with  such  a  provision,  a  part  of  the  cargo  was  destined 
to  Montego  Bay,  and  the  rest  to  St.  Anne's.  The  ship  arrived  at 
Montego  Bay,  and  after  remaining  there  in  safety  nearly  a  month, 
and  discharging  the  part  of  the  cargo  which  was  to  be  delivered 
there,  she  sailed  for  St.  Anne's,  and  was  lost  on  the  passage. 
Lord  Kenyon  ruled  that  the  risk  ended  at  Montego  Bay.^ 

956.  Insurance  on  a  vessel  "  at  and  from  New  Orleans,  Cam- 
peachy,  and  Havana,  for  a  period  of  six  months,"  is  a  time  policy, 
and  does  not  limit  the  risk  at,  from,  and  to  those  ports,  but  admits 
of  sailing  for  any  port  of  destination.^ 

957.  Insurance  to  piorts  in  S.,  comprehends  a  place  on  the 


I  Ellery  v.  New  England  Ins.  Co.,  Co.,  Park,  G4 ;  S.  C,  Marshall,  266, 

8  Pick.  14.  2d  ed. 

8  Leigh  V.  Mather,  2  Esp.  412;  Park,  3  Groussott  v.  Sea  Ins.  Co.  24  Wend. 

64.     See  also  Camden  v.  Cowley,  1  219. 
W.  Bl.  417;  Barras  v.  London  Ass. 


SECT.  II.]  TERMINATION   OF   THE   RISK.  543 

coast  ivhere  it  is  customary  to   land   and   to   take   in  cargoes, 
though  not  a  very  secure,  tvell-protected  jiort. 

958.  A  policy  to  two  ports  on  the  coast  of  B.  is  to  any  two,  at 
the  election  of  the  assured.^ 

A  ship  being  insured  to  Barcelona,  and  "two  other  ports  in 
Spain,"  and  thence  to  Great  Britain,  discharged  her  cargo  at 
Tarragona,  and  then  proceeded  to  Saloe,  which  is  just  round  the 
headland,  about  ten  miles  from  Tarragona,  and  was  lost  there 
while  taking  in  her  cargo.  The  underwriters  objected  that  Saloe 
was  not  a  "port"  within  the  terms  of  the  policy.  It  has  a  cus- 
tom-house, conveniences  for  loading  and  discharging  ships,  a  port- 
captain  and  harbor-master,  and  consular  officers  reside  there. 
Saloe  Bay,  where  the  vessels  lie,  is  not  more  open  than  some 
other  Spanish  ports.     The  underwriters  were  held  to  be  liable.^ 

959.  Where  a  vessel  is  insured  to,  at,  and  from  an  island  or 
district,  it  is  matter  of  construction  in  the  particular  case,  whether 
the  risJc  continues  from  port  to  port  there. 

A  vessel  insured  at  and  from  N.  to  the  island  of  Trinidad,  in 
the  West  Indies,  and  "at  and  from  the  island  of  Trinidad"  to  N., 
sailed  from  Port  Spain,  the  only  one  in  Trinidad  where  foreign 
vessels  where  permitted  to  enter  and  clear,  to  another  port  in  the 
island  to  take  in  a  part  of  her  homeward  car^o,  the  master's  inten- 
tion being  to  return  to  Port  Spain  to  take  on  board  the  remainder 
of  their  cargo  and  clear  there,  but  the  vessel  was  lost  on  the  pas- 
sage to  such  other  port.  It  was  held  that  the  risk  continued  on 
such  passage.^ 

960.  Insurance  to  a  certain  place  "  and  a  mar'ket^''  covers  the 
risJc  to  other  places  in  the  same  region  or  vicinity. 

Under  a  policy  on  a  ship  to  "  Barbadoes  and  a  market,"  the 
court  said,  the  "  vessel  may  bona  fide  go  from  island  to  island, 
until  her  cargo  is  disposed  of;  but  we  do  not  mean  to  say  that 
the  same  construction  is  to  be  given  to  a  policy  in  any  other  trade 
than  that  to  the  West  Indies."  '^     But  an  insurance  to  any  island 

1  Vandervoort  v.  Smith,  2  Caines,  3  Dickey  v.  Baltimore  Ins.  Co.,  7 
155.  Cranch,  327. 

2  Sea  Ins.  Co.  of  Scotland  v.  Gavin,  4  Maxwell  v.  Robinson,  1  Johna. 
2  Dow  &  Clarke,  129.  333. 


544  THE    VOYAGE.      DURATION   OF   THE   RISK.        [CHAP.  XI. 

in  the  West  Indies,  some  of  those  islands  being  hostile,  will  be 
limited  in  construction  to  those  which  are  friendly.^ 

961.  Insurance  to  A,  and  "  if  turned  away,"  then  to  a  "  neigh- 
boring'' or  "  a  near  open  port,"  refers  to  the  geographical  situ- 
ation of  such  other  port,  rather  than  to  the  difficulty  or  facility 
of  proceeding  to  it. 

A  ship  being  insured  from  New  York  to  Bourdeaux,  with  a 
provision  that,  if  turned  away,  she  might  "  proceed  to  a  near  open 
port,"  Mr.  Justice  Spencer,  for  the  court,  said  :  "  The  terms  '  near 
open  port '  must  be  considered  as  used  in  a  geographical  sense, 
and  not  as  depending  on  the  facility  of  reaching  a  distant  port,  if 
the  wind  should  happen  to  be  favorable.  They  admit  of  some 
latitude,  but  still  there  must  be  a  limitation.  If  it  be  conceded 
that  L'Orient  comes  within  the  expression,  '  near  open  port,'  in 
reference  to  Bourdeaux,  it  is  perhaps  as  great  an  extension  of  the 
import  of  the  words  as  ought  to  be  allowed.  We  are  of  opinion 
that  neither  Falmouth,  Plymouth,  nor  Guernsey  can  be  considered 
a  near  open  port  to  Bourdeaux.^ 

A  vessel  being  insured  to  Amsterdam,  with  liberty,  if  turned 
away,  to  enter  a  neighboring  port,  being  turned  away  from  Amster- 
dam, was  held  to  be  protected  under  this  liberty  in  proceeding  to 
London  ;  there  being  at  the  time  no  nearer  port  which  she  could 
safely  enter.^ 

962.  Insurance  on  a  vessel  to  the  port  of  discharge,  or  until 
arrival  at  port,  in  the  singular,  terminates  at  the  first  such  port. 
The  questions  in  this  case  are,  what  is  a  port,  and  what  is  such  an 
unloading  at  a  port  as  to  render  it  a  port  of  discharge,  and  what  is 
an  arrival. 

Under  insurance  "  to  the  vessel's  port  of  discharge  in  Europe," 
the  vessel  sailed  from  Boston  bound  to  the  Meuse,  but  the  master, 
understanding  that  the  vessel  and  cargo  would  be  confiscated  if  he 
proceeded  to  Rotterdam,  turned  to  Gothenburg,  to  inquire  the 
state  of  the  markets  in  the  Baltic,  and  after  leaving  Gothenburg, 


1  Neilson  r.  De  LaCour,  2Esp.  619.        3  Fergusson  v.  Phoenix  Ins.  Co.,  5 
*  Tenet  v.  Phoenix  Ins.  Co.,  7  Johns.     Binn.  544. 
363. 


SECT.  II.]         TERMINATION  OF  THE  RISK.  545 

and  while  proceeding  to  a  market  in  the  Baltic,  the  vessel  was 
captured."     It  was  held  that  the  risk  had  not  terminated.^ 

A  ship  being  insured  from  the  United  States  to  Europe  and  back 
"to  her  port  of  discharge  in  the  United  States,"  cleared  from  St. 
Ubes,  with  a  load  of  salt,  for  New  York,  on  arriving  at  which 
port,  the  captain  immediately  advised  his  owner,  at  Hartford,  of 
his  arrival,  and  the  owner,  in  reply,  without  any  delay,  ordered 
the  captain  to  proceed  with  the  ship  and  cargo  to  Middletown,  on 
Connecticut  River.  As  the  vessel  could  not  proceed  up  the  river 
with  her  whole  cargo,  she  must  be  lightened  either  at  New  York, 
or  at  the  mouth  of  the  river.  The  captain,  after  consultation, 
lightened  her  at  New  York,  by  discharging  about  three  thousand 
bushels  of  salt  into  lighters,  to  be  transported  to  Middletown.  The 
usual  entry  of  ship  and  cargo  was  made  at  New  York,  as  at  the 
port  of  discharge,  and  the  duties  were  paid  on  three  boxes  of 
lemons,  the  only  part  of  the  cargo  subject  to  duties.  No  part  of 
the  cargo  was  landed  at  New  York.  It  was  held  in  Connecticut, 
that  New  York  was  the  port  of  discharge,  stress  being  laid  upon 
the  master's  having  so  intended,  and  upon  the  entry  and  payment 
of  duties  there.2     But  query  of  this. 

It  was  held,  in  another  case,  that  the  landing  of  150  boxes  of 
lemons  at  New  York,  while  the  ship  was  waiting  for  orders  from 
the  owner,  the  lemons  being  in  a  perishing  state  and  likely  to  be 
spoiled,  does  not  make  New  York  the  port  of  discharge  under 
such  a  policy .3 

And  so  it  was  held  in  respect  to  the  discharging  of  the  crew  in 
f^ew  York,  and  immediately  shipping  another  to  proceed  to  Mid- 
dletown, on  the  owner's  giving  directions  to  this  effect.^ 

A  vessel,  being  insured  from  the  West  Indies  to  her  port  of  dis- 
charge in  the  United  States,  put  into  Savannah,  in  Georgia,  where 
the  master  intended  to  discharge  his  cargo,  if  the  market  was  favor- 
able ;  but  not  finding  it  so,  he  concluded  to  proceed  to  Boston, 


1  Coolidge    V.    Gray,   8   Mass.  R.  ^  gage   v.  Middletown  Ins.  Co.,  1 
527.  Conn.  R.  239. 

2  King  V.  Middletown  Ins.  Co.,  1  4  King  v.  Hartford  Ins.  Co.,  1  Conn. 
Conn.  R.  184.  R.  333. 

46* 


546  THE    VOYAGE.      DURATION    OF    THE   RISK.         [CUAP.  XI. 

after  making  repairs  at  Savannah.  It  was  held,  that  the  risk  con- 
tinued to  Boston. 1 

963.  Where  insurance  is  made  to  a  port  or  ports,  or  to  an 
island  or  district  with  liberty  to  touch  and  trade  at  divers  ports,  or 
"to  the  final  port  of  discharge, ^^  the  rislc  will  terminate  when  the 
whole  cargo  is  discharged,  or  when  the  objects  of  the  voyage  to 
ports  for  the  purpose  of  delivering  cargo  are  so  far  accomplished, 
that  the  delivery  of  the  remainder  at  any  ulterior  port  is  no  in- 
ducement tvorth  consideration  to  proceed  thither. 

A  ship  was  insured  "  from  Liverpool  to  Martinique,  or  any  other 
of  the  Windward  or  Leeward  Islands,  with  liberty  to  touch  and  stay 
at  any  ports  or  places  whatsoever  to  take  on  board  and  land  goods, 
stores,"  Sic.  The  outward  cargo  was  disposed  of  at  Martinique, 
excepting  a  small  quantity  of  bricks  and  lime,  with  which  the  cap- 
tain sailed  for  Antigua,  at  which  island  he  lay,  waiting  to  procure 
a  freight  home  and  dispose  of  the  rest  of  his  outward  cargo,  from 
the  31st  of  May  to  the  8th  of  July,  when  the  vessel  was  wrecked. 
Lord  Ellenborough  instructed  the  jury,  that  "the  captain  had  no 
right  to  mix  up  together  the  two  objects  of  disposing  of  the  rem- 
nant of  the  outward  cargo  and  procuring  a  homeward  cargo,  at  the 
risk  of  the  underwriters  on  the  outward  voyage.  When  the  dis- 
posal of  the  outward  cargo  ceased  to  be  the  sole  reason  of  his  stay 
at  Antigua,  these  underwriters  were  discharged."  ~ 

The  concluding  remark  in  this  ruling  needs  to  be  qualified. 
The  risk  should  continue  on  the  ship  so  long,  at  least,  as  the  dis- 
posal of  the  outward  cargo  is  the  principal  or  substantial  reason 
for  proceeding  to  an  ulterior  port.  The  risk  in  a  policy  on  cargo 
will,  as  we  shall  see,  continue  still  longer.^ 

A  ship  was  insured  from  the  West  India  Islands  to  the  United 
Kingdom,  and  back  "to  Barbadoes  and  all  or  any  of  the  West 
India  colonies,  (.J.  and  D.  excepted,)  until  the  ship  should  be 
arrived  at  her  final  port,  with  liberty  to  proceed  to  and  touch  and 
stay  at  any  ports  or  places  whatsoever,  and  to  load  and  unload 
goods."     She  sailed  from  Liverpool  to  the  West  Indies  with  a 


1  Lapham    v.   Atlas    Ins.    Co.,   21         2  Ingljs  v.  Vaux,  3  Camp.  437. 
Pick.  1.  3  Vide  Moore  v.  Taylor,  infra. 


SECT.  II.]         TERMINATION  OF  THE  RISK.  547 

cargo,  about  one  eighteenth  part  of  the  value  of  which,  and  more 
than  one  tiiird  part  of  the  tonnage,  consisted  of  coals  and  bricks. 
On  arriving  at  Barbadoes  the  cargo,  except  the  coals  and  bricks, 
was  discharged,  and  330  empty  molasses  casks  taken  on  board, 
and  the  ship,  being  about  to  sail  on  the  11th  of  August  to  Berbice 
for  a  cargo  of  molasses,  was  totally  lost  on  the  night  of  the  10th. 
Mr.  C.  J.  Denman  ruled  at  the  trial,  that,  "  if  the  cargo  had  been 
substantially  discharged  at  Barbadoes,"  the  risk  had  terminated. 
And  he  was  of  opinion  that  it  had  been  so,  considering  the  coals 
and  bricks  to  have  been  retained  on  board  for  ballast ;  and  so  the 
jury  found,  though  Littledale,  J.,  doubted  whether  the  verdict  was 
right.  All  the  court,  however,  agreed  that,  if  the  object  of  going 
to  Berbice  was  to  find  a  market  for  the  coals  and  bricks,  or  deli- 
ver them,  the  risk  would  have  continued  to  that  island,  notwith- 
standing another  purpose  in  going  thither  might  have  been  to  load 
for  another  voyage.^ 

Where  the  policy  was  on  ship,  cargo,  and  freight,  from  the 
Canaries  "  to  any  port  or  ports "  in  Spanish  America,  the  con- 
struction adopted  was,  that  the  voyage  tern)inated  when  the  cargo 
was  discharged,  and  that  the  policy  would  not  cover  a  new  voy- 
age undertaken  from  one  port  of  Spanish  America  to  another.^ 
The  court  seems  to  be  of  opinion  that  the  risk  would  continue  to 
the  last  port  of  discharge,  and  this  agrees  with  the  case  just  cited. 

A  vessel  being  insured  from  Beverly  to  "Bilboa,  or  a  port  of 
discharge  in  Europe,"  and  from  Europe  to  her  port  of  discharge 
in  America,  or  to  a  port  or  ports  in  India,  proceeded  to  Bilboa, 
where  a  part  of  the  cargo  was  discharged,  and  then  sailed  to  Lis- 
bon. It  was  contended,  in  behalf  of  the  assured,  that  a  policy  to 
Bilboa,  "or"  a  port  of  discharge,  was  equivalent  to  one  to  Bil- 
boa, "and"  a  port  of  discharge.  Chief  Justice  Parker,  giving  the 
opinion  of  the  court,  said:  "The  plain  meaning  of  the  expression 
is,  to  Bilboa  or  some  other  port  of  discharge."  It  was  accord- 
ingly held,  that  the  risk  on  the  outward  voyage  ended  at  Bilboa.^ 


1  Moore  v.  Taylor,  1  Ad.  &  EI.  25  ;         a  Stephens    v.    Beverly    Ins.    Co., 
3  W.  &  N.  406.  Mass.  Sup.  Jud.  Ct.,  Essex,  October, 

2  Stocker  v.  Harris,  3  Mass.  R.  409.     1820. 


0-48  THE   VOYAGE.      DURATION   OF   THE   RISK.        [CHAP.  X^- 

A  vessel  being  insured  "  to  port  or  ports  of  discharge  in  the 
river  La  Plata,"  took  a  cargo  of  flour,  lumber,  and  80  bundles  of 
shingles,  and  having  discharged  her  whole  cargo  excepting  35 
bundles  or  7 J  thousands  of  shingles,  worth  about  $50,  at  Monte 
Video,  and  taken  on  board  5.000  horns  and  four  passengers,  to  be 
landed  at  Buenos  Ayres,  proceeded  to  the  latter  port,  where  she 
was  lost.  The  court  in  ]Massachusetts  were  of  opinion,  that,  if 
the  cargo  was  substantially  discharged  at  ]\Ionte  Video,  and  the 
object  in  proceeding  to  Buenos  Ayres  was  substantially  ulterior, 
and  the  discharge  of  the  remnant  of  the  outward  cargo  constituted 
no  material  inducement  thereto,  the  risk  had  terminated  at  Monte 
Video,  and,  though  it  was  a  question  for  the  jury,  intimated  that, 
in  their  opinion,  the  risk  had  ended. ^ 

Insurance  was  made  on  the  cargo  of  the  ship  Penang  to  Lintin, 
Hong  Kong,  Macao,  Canton,  &;c.,  and  all  and  any  other  port,  and 
places,  &.C.,  "backwards  and  forwards,"  with  leave  to  transship 
or  reship  the  goods  on  board  of  the  same  or  other  vessel  or  vessels, 
or  from  such  vessels,  "  continuing  the  risk  by  land  and  water  until 
the  goods  should  arrive  at  their  final  place  of  destination."  The 
consignees,  deeming  it  unsafe  for  the  vessel  to  proceed  from  Macao 
up  to  Canton,  on  account  of  the  hostilities  between  the  Chinese 
and  British  at  the  time,  (1842,)  chartered  the  James  Laing  to 
accompany  The  Penang  from  Macao  to  Hong  Kong,  that  the 
cargo  might  be  there  transshipped  to  the  latter,  and  remain  until  it 
could  be  sent  up  to  Canton  or  to  some  other  port.  After  a  part 
of  the  goods  had  been  transshipped  to  the  James  Laing,  she  was 
wrecked,  and  the  loss  thereby  was  the  subject  of  a  suit.  It  was 
alleged  in  behalf  of  the  underwriters,  that  Hong  Kong  had  been 
made  the  final  port  of  destination,  and  that  the  risk  had  terminated 
on  the  goods  put  on  board  of  the  James  Laing ;  but  Lord  Den- 
man,  and  his  associates,  held  that  the  risk  had  not  terminated.^ 

In  another  policy  before  the  same  court,  on  the  same  cargo, 
with  a  similar  description  of  the  voyage,  excepting  leave  to  trans- 
ship the  goods,  the  risk  was  held  to  have  terminated  on  the  trans- 

1  Upton  V.  Salem  Commercial  Ins.  2  Olivcrson  v.  Brightman,  8  Ad.  & 
Co.,  8  Mete.  COS.  El.  (x.  s.)  781. 


SECT.  II.]  TERMINATION   OF   THE   RISK.  549 

shipped  goods,  on  account  of  change  of  risk  in  the  nature  of  a  de- 
viation, by  unnecessarily  shifting  it  to  a  different  vessel.^ 

The  interest  of  the  captain  in  a  cargo  was  insured  "  from  Lon- 
don to  all  or  any  of  the  ports  or  places  in  the  East  Indies,  China, 
or  Persia,  or  elsewhere,  on  this  or  the  other  side  of  the  Cape  of 
Good  Hope,  until  arrival  at  the  last  place  of  discharge  in  the  out- 
ward voyage."  The  cargo  carried  under  the  charter-party  was 
wholly  discharged  at  Calcutta  ;  but  the  captain,  having  made  a 
part  of  his  investment  at  Calcutta,  intended  to  make  the  rest  at 
Madras,  whither  the  ship  was  ordered  by  the  company  on  an  inter- 
mediate voyage.  A  loss  happened  on  the  voyage  to  Madras,  and 
a  question  was  made  whether  the  risk  ended  at  Calcutta.  Lord 
Ellenborough  ruled  that  Calcutta  was  "  the  last  port  of  discharge 
on  the  outward  voyage."  ^ 

Insurance  being  made  on  a  ship  "to  any  port  or  ports  in  the 
River  Plate,  until  her  arrival  at  the  last  port  of  discharge"  in  the 
river;  the  captain  intended  to  put  into  Buenos  Ayres,  and  dis- 
charge his  cargo  there,  but  hearing,  after  he  came  into  the  river, 
that  Buenos  Ayres  was  in  the  hands  of  the  enemy,  he  put  into 
Monte  Video,  intending  to  discharge  his  cargo  there,  if  the  market 
was  favorable;  but  at  the  same  time  not  relinquishing  the  design 
of  proceeding  to  Buenos  Ayres  to  complete  the  discharging  of  the 
cargo,  if  it  should  be  practicable.  While  the  vessel  lay  at  Monte 
Video,  a  loss  took  place  ;  Buenos  Ayres  still  remaining  in  the 
possession  of  the  enemy.  The  court  was  of  opinion,  that  the  risk 
ended  at  Monte  Video,  as  the  captain  did  not  contemplate  going 
to  any  other  port  except  Buenos  Ayres,  and  he  could  not  legally 
go  thither  while  the  place  was  in  possession  of  the  enemy .^ 

964.  An  insurance  being  to  a  certain  port,  the  object  of  the 
voyage  being  a  delivery  of  the  cargo  there,  will  terminate  at  a 
substituted  port  of  delivery. 

A  ship  was  insured  "from  Boston  to  Tonningen."     The  ship 


1  Bold  V.  Rotheram,  8  Ad.  &  El.         3  Brown    v.   VIgne,    12    East,   K. 
(n.  s.)  797.  283. 

2  Richardson  v.  London  Ass.  Co., 
4  Camp.  94. 


550  THE    VOYAGE.       DURATION    OF    TUE    RISK.        [CHAP.  XI. 

was  compelled  by  stress  of  weather  to  enter  the  Elbe  for  safety, 
and  she  proceeded  up  to  Gliickstadt.  The  consignee  received  the 
cargo  there.  Mr.  Justice  Parker  gave  the  opinion  of  the  court, 
"that  the  voyage  was  completed  by  the  consent  of  the  master  and 
consignee  to  deliver  and  receive  the  cargo  at  Gluckstadt,  this  be- 
ing a  substitution  of  that  place  for  Tonningen.  The  object  of  the 
voyage,  as  understood  by  the  parties,  was  to  carry  the  cargo  to 
Tonningen,  and  it  was  competent  to  the  parties  to  put  an  end  to 
the  contract  between  them,  by  adopting  Gluckstadt  as  the  place 
of  delivery."  ^ 

The  risk  on  a  ship,  insured  for  a  fishing  voyage,  is  not  termi- 
nated by  the  arrival  of  a  part  of  her  cargo  sent  home  by  another.^ 

965.  The  port  of  discharge  is  that  of  the  actual  discharge  of 
the  cargo,  notwithstanding  a  different  one,  or  more  than  one,  may 
have  been  intended. 

As  where,  in  a  trial  before  Buller,  J.,  a  ship  being  insured  to 
her  last  port  of  discharge  in  India,  the  whole  cargo  was  discharged 
at  Madras,  though  it  had  been  intended  to  discharge  a  part  of  it 
at  a  subsequent  port.^ 

966.  The  insured  voyage  being  abandoned,  the  risk  ends. 
Goods  were  insured  from  London   to  Revel,  and  the  master, 

having  intelligence  on  the  voyage  that  there  was  an  embargo  on 
English  vessels  at  that  port,  put  back  for  England,  and  a  loss  took 
place  on  the  way  thither.  Lord  EUenborough  :  "If  the  ship,  be- 
ing unable  to  enter  at  Revel,  had  returned,  with  an  intention  of 
ultimately  completing  the  original  voyage,  a  question  of  some 
nicety  might  have  arisen.  But  the  original  voyage  was  aban- 
doned, and  the  underwriters  were  discharged."'* 

The  same  judge  said  in  another  case :  "  There  may  be  causes 
for  a  ship  putting  back  for  a  time,  without  any  intention  of  aban- 
doning her  voyage;  as  the  approach  of  an  enemy,  or  a  temporary 

1  Shaplcy  v.  Tappan,  9  Mass.  R.  20.  ^  Blackenbagen  v.  London  Ass.  Co., 

2  Phillips  V.  Champion,  1  Marsh.  R.  1  Camp.  454.  Sec  also  Richardson  v. 
402;  6  Taunt,  a.  Maine  Fire  &  Mar.  Ins.  Co.,  6  Mass. 

3  MofTatt  r.  Ward,  4  Don-;.  31,  n.  R.  102,  at  p.  117,  121. 
Sec  also  Kllery  i'.  New  England  Mar. 

Ins.  Co.,  8  J'ick.  14. 


SECT.  II.]  TERMINATION    OF   THE   RISK.  551 

embargo  ;  or  as  in  a  case  which  occurred  before  Lord  Kenyon, 
where  a  ship  bound  to  a  port  in  the  Baltic  found  it  blocked  up  by 
ice,  on  which  she  put  back,  but  afterwards,  on  a  thaw,  sailed 
again."  ^ 

In  a  case  of  insurance  "  to  Gothenburg,  and  one  port  of  dis- 
charge in  the  Baltic,"  the  captain,  while  at  Gothenburg,  elected 
St.  Petersburg  as  liis  port  of  destination,  but  after  sailing  changed 
his  mind,  and  determined  to  go  to  Stockhohn,  and  was  captured 
before  altering  his  course  from  St.  Petersburg  to  Stockholm,  while 
he  was  on  the  common  course  to  both  those  ))laces.  The  judges 
of  the  Supreme  Court  in  New  York,  were  divided  in  opinion  on 
this  case,  but  in  the  Court  of  Errors,  Chancellor  Kent  gave  an 
opinion,  supported  by  an  elaborate  argument  and  examination  of 
authorities,  that  the  master's  determination  to  go  to  Stockholm  put 
an  end  to  the  risk,  and,  accordingly,  that  the  insurers  were  not 
liable  for  any  loss  subsequent  to  that  determination.  The  other 
judges  concurred  in  this  opinion.^ 

I  cannot  but  doubt  this  decision.  As  the  assured  cannot  have 
the  benefit  of  his  mere  intents,  not  distinctly  realized  in  acts,  so  he 
ought  not  to  be  prejudiced  by  them.  In  this  case  the  new  intent 
was  just  as  subject  to  be  revoked  as  the  first  one  had  been.  The 
risk  having  once  commenced,  it  is  immaterial  to  the  underwriters 
how  many  designs  of  turning  to  the  right  and  left  the  master  may 
have,  so  long  as  he  is  in  fact  on  the  direct  route  of  any  destination 
authorized  by  the  policy.  In  determining  whether  the  risk  has  or 
has  not  commenced,  the  ambiguous  acts  of  the  assured  or  of  his 
agents  must  necessarily  be  construed  according  to  the  intention 
with  wliich  they  are  done ;  that  is,  whether  in  the  prosecution  of 
the  voyage  insured  upon,  or  a  different  one;  but  when  the  right 
of  the  underwriter  to  retain  the  premium  has  once  accrued,  the 
assured  is  surely  entitled  to  avail  himself  of  the  benefit  of  his  con- 
tract, so  long  as  he  is  actually  within  its  conditions. 

967.  The  risk  ends  ivhen  the  voyage  is  intercepted  and  broken 
uj),  by  a  peril  not  insured  against. 


J  Brown    r.   Vigne,    12    East,   R.        2  N,  y.  pii-emens'  Ins.  Co.  v.  Law- 
283.  rence,  14  Johns.  46. 


552  THE    VOYAGE.      DURATION   OF   THE   RISK.        [CHAP.  XI. 

Insurance  was  made  "  fronti  New  York  to  Bourdeaux,  free  from 
loss  or  detention,  in  consequence  of  prohibited  trade."  The  ves- 
sel was  prohibited  to  enter  at  Bourdeaux.  Chief  Justice  Kent 
said:  "The  prohibition  to  enter,  under  the  special  provision  in  the 
policy,  was  equivalent  to  an  actual  termination  of  the  risk  by  land- 
ing the  goods."  ^ 

968.  Insurance  to  a  port  and  "until  the  vessel  shall  have  been 
there  moored  twenty-four  hours  in  safety,'^  presents  the  question. 
What  is  being  moored  iti  safety  ? 

Under  such  a  policy,  on  a  voyage  to  London,  the  vessel  arrived 
at  the  dock  where  she  was  to  unload,  and,  there  being  no  room  on 
the  inside,  lay  outside,  moored  and  lashed  to  other  vessels,  and 
after  so  lying  more  than  twenty-four  hours  was  forced  adrift  by  the 
ice,  and  lost.  Lord  Kenyon  was  of  opinion,  that  she  had  been 
moored  twenty-four  hours  in  safety,  as  intended  by  the  policy.^ 
And  this  seems  to  have  been  a  proper  construction  of  the  phrase, 
which  must  have  reference  to  safety  from  hinderance  by  the  ele- 
ments and  sea-perils,  and  not  to  the  good  or  bad  berth,  or  moor- 
ing-ground,  the  vessel  might  find  in  the  port. 

In  the  case  of  a  vessel  insured  to  London,  that  within  twenty- 
four  hours  after  her  arrival  was  ordered  back  to  quarantine,  where- 
upon her  crew  deserted  her,  and  she  did  not  get  into  quarantine 
for  eighteen  days  after,  it  was  held  that  the  risk  continued  during 
the  quarantine,  and  consequently  until  she  should  have  been  moored 
twenty -four  hours  in  safety,  after  the  expiration  of  the  quarantine.^ 
In  this  case,  the  being  moored  in  safety  was  considered  to  mean, 
so  as  to  have  "the  opportunity  of  unloading." 

A  ship  being  insured  to  Havana,  on  arriving,  was  ordered  to 
anchor  under  the  Moro  Castle,  at  the  entrance  of  the  harbor,  be- 
cause a  frigate  was  about  passing  ;  and  after  the  frigate  had  passed, 
it  was  too  late  to  get  the  ship  under  way  that  day.  On  the  next 
day,  in  crossing  the  harbor,  and  more  than  twenty-four  hours  after 
she  had  come  to  anchor  under  the  castle,  she  struck  on  a  shoal  in 


'  Speyer  v.  N.  Y.  Ins.  Co.,  3  Johns.        2  Angerstein  v.  Bell,  Park,  55. 
J,  3  Waples  r.  Eames,  2  Str.  1243. 


SECT.  II.]  TERMINATION   OF   THE   RISK.  553 

the  harbor.  It  was  held  in  Louisiana,  that  she  had  not  been 
moored  twenty-four  hours  in  good  safety .1 

A  ship  and  freigiit  were  insured  from  Sierra  Leone,  "the  ship 
until  she  should  arrive  at  London,  and  be  there  moored  at  anchor 
twenty-four  hours  in  good  safety,  and  the  goods  until  the  same 
should  be  there  discharged  and  safely  landed."  The  ship  brought 
a  cargo  of  teak,  which  the  master  was  directed  to  deliver  at  the 
King's  Dock  at  Deptford.  The  ship  arrived  at  Deptford,  but  was 
hindered  by  the  ice  in  the  river  from  entering  the  dock,  and  lay 
moored  for  some  days,  when,  in  the  attempt  to  move  her  into  the 
dock,  she  went  ashore  and  was  wrecked.  Lord  Tenterden  and 
his  associates  considered  that  the  being  safely  moored  must  be 
understood  in  this  case  the  being  moored  in  the  dock,  as  the  usual 
place  for  discharging  such  a  cargo.^ 

A  vessel  insured  in  like  manner  to  Jamaica  arrived  at  her  port 
of  destination  and  came  to  anchor  there  in  tempestuous  weather, 
and  the  gale  continued  until  she  lost  both  of  her  anchors,  and  was 
driven  ashore  and  wrecked  ;  but  she  had  sustained  no  damage 
during  twenty-four  hours  after  coming  to  anchor.  Parsons,  C.  J. : 
"The  vessel  is  safe  within  the  terms  of  the  policy,  until  she  suffers 
a  loss  insured  against."  ^ 

969.  The  risk  on  a  vessel  under  a  policy  to  a  place  generally 
without  any  provision  as  to  her  safety  there,  terminates  on  the 
vessel  being  safely  anchored  at  her  port  of  destination,  in  the  usual 
place  and  manner^ 

The  risk  does  not  end  until  the  ship  can  be  moored  in  the  usual 
place.  A  ship  insured  to  Havana,  came  to  anchor  near  the  Moro 
Castle,  at  the  entrance  of  the  harbor,  where  all  vessels  are  obliged 
to  wait  until  they  are  visited  by  the  health-officers  and  those  of  the 
custom-house.  It  is  not,  however,  considered  a  place  of  safety, 
nor  do  vessels  discharge  their  cargoes  there.  After  remaining 
there  more  than  one  day,  and  before  the  ship  had  been  visited  or 

1  Zacharie   v.   Orleans  Ins.  Co.,  5  3  Bill  v.  Mason,  6  Mass.  E.  313. 
Martin,  (n.  s.)  637.     See  Dickey  d.  ^  Ord.  Louis  XIV.  Ins.  a.  5  ;  Code 
United  Ins.  Co.,  11  Johns.  358.  de  Commerce,  a.  152;  Bill  v.  Mason, 

2  Samuel  v.  Royal  Exch.  Ass.  Co.,  6  Mass.  R.  313. 
8B.  &  C.  119. 

VOL.  I.  47 


554  THE   VOYAGE.      DURATION   OF   THE  RISK.        [CHAP.  XI. 

admitted  to  entry,  she  was  wrecked.  It  was  held,  that  the  risk 
had  not  ended. ^ 

970.  The  risk  on  a  cargo  insured  ''till  safely  landed,^'  will 
continue  in  lighters,  where  that  is  the  usual  mode  of  landing 
similar  goods,  or  goods  from  vessels  of  like  size.^ 

And  so  goods  insured  ''to  and  at,"^  or  "to"  a  place,  are 
covered  in  lighters,  where  such  is  the  customary  way  of  landing 
similar  goods,"*  unless  the  goods  are  previously  taken  in  charge  by 
the  assured  or  consignee. 

Goods  destined  to  Soto  La  Marina,  in  Mexico,  are  usually  dis- 
charged from  the  vessel  into  launches  outside  of  the  bar,  sixty 
miles  below  the  town,  and  transported  up  to  the  town  in  the 
launches,  or  landed  and  carried  on  mules.  It  was  held,  that  in 
either  case  they  are  at  the  risk  of  the  underwriters  until  they  are 
landed.^ 

In  the  case  of  a  policy  on  goods  to  the  coast  of  Labrador,  till 
safely  landed,  the  vessel  arrived  on  that  coast  the  22d  day  of  June, 
and  the  crew  were  employed  in  fishing,  except  at  short  intervals 
while  they  were  landing  such  parts  of  the  cargo  as  were  wanted, 
until  the  13th  of  August,  when  the  vessel,  still  having  the  princi- 
pal part  of  her  cargo  on  board,  was  captured  by  an  American 
privateer.  Lord  Mansfield  and  his  associates  were  of  opinion, 
that  there  was  not  more  delay  than  the  usage  of  the  trade  justi6ed. 
The  risk  had  not  expired,  because  the  assured  had  not  had  more 
than  the  usual  and  reasonable  time,  according  to  the  course  of  the 
trade,  for  landing  the  cargo.^ 

Goods  being  insured  to  the  coast  of  Africa,  "till  safely  landed," 
the  vessel  lay  on  the  coast  from  the  6th  of  May  till   the  4th  of 


1  Dickey  v.   United   Ins.    Co.,    11  3  Parsons  v.  Mass.  Fire  &  Mar.  Ins. 
Johns.  358.    Sec  Zacbarie  v.  Orleans  Co.,  6  Mass.  R.  197. 

Ins.  Co.,  5  Martin,  (n.  s.)  supra.  ^  Wadsworth  v.  Pacific  Ins.  Co.,  4 

2  Sparrow    v.    Carruthers,    2    Sir.  Wend.  33. 

1 230  ;  Hurry  r.  Royal  Exch.  Ass.  Co.,  5  Q^jicar  v.  Louisiana  Ins.  Co.,  5 

2  B.  &  P.  430;  3  Esp.  289  ;  Rucker  Martin,  (n.  s.)  386. 

V.  London  Ass.  Co.,  2  B.  &  P.  432,  n. ;  c  Noble  v.  Kennoway,  Doug.  492. 

Iklatthie  V.  Potts,  3  id.  23 ;  Coggeshall 

V.  American  Ins.  Co..  3  Wend.  283. 


SECT.  II.]  TERMINATION    OF   THE   RISK.  555 

June,  waiting  for  a  return  cargo  to  come  down  from  the  country, 
as  is  customary  ;  and  while  so  waiting  was  captured  by  a  French 
privateer.  Lord  Kenyon  was  of  opinion,  that  the  risk  continued 
to  the  time  of  the  capture,  and  refused  to  admit  evidence  that,  by 
the  usage  in  these  voyages,  the  risk  continued  on  the  goods  but 
twenty-four  hours  after  the  vessel  was  moored. ^ 

It  has  been  held,  that  the  risk  continues  on  goods  brought  back 
to  the  boat,  in  order  to  be  again  put  on  board  of  the  ship,  where 
they  had  been  put  on  shore  for  the  purpose  of  being  delivered  to 
a  purchaser,  such  delivery  not  being  made. 

Insurance  was  made,  upon  "specie  and  merchandise  out,  and 
merchandise  home,  at  and  from  Boston  to  ports  in  the  islands  of 
Sumatra  and  Java,  for  the  purpose  of  disposing  of  the  outward  and 
procuring  a  return  cargo,  and  thence  to  the  port  of  discharge  in  the 
United  States,  with  liberty  to  touch  at  the  usual  places,  and  trade 
thereat."  At  Labouaga,  in  the  island  of  Sumatra,  the  captain  con- 
tracted with  Dato  Bassow,  the  chief  magistrate  there,  to  exchange 
a  chest  of  opium  for  a  certain  quantity  of  pepper  and  for  dollars. 
When  pepper,  of  a  value  equal  to  that  of  two  thirds  of  the  opium, 
had  been  delivered  on  board,  Dato  requested  that  the  opium  should 
be  landed  and  weighed,  and  said  he  would  pay  the  balance  in 
dollars.  The  opium  was  accordingly  landed.  While  they  were 
occupied  in  weighing  it,  Dato  demanded  new  terms  of  agreement, 
upon  which  the  captain  proposed  to  take  the  opium  on  board,  and 
pay  in  dollars  for  the  pepper  which  he  had  received.  Dato  con- 
sented to  this  proposition,  but  just  as  the  opium  had  been  put  on 
board  of  the  boat  to  be  carried  back  to  the  ship,  and  while  it  rested 
on  the  gunwale  of  the  boat,  his  men  seized  it,  in  pursuance  of  a 
previous  design  to  plunder  or  cheat  the  captain.  It  was  insisted, 
in  behalf  of  the  insurers,  that  the  risk  on  the  opium  had  ended,  as 
soon  as  it  was  put  into  the  scales  to  be  weighed.  Mr.  Justice 
Sedgwick,  for  the  court,  said:  "The  insurers  insured  the  plaintiff 
against  the  restraint  and  detention  of  princes,  for  the  purpose  of 
disposing  of  the  outward  and  procuring  a  return  cargo ;  and  while 
executing  this   purpose,  the  property  was  violently  seized.     The 

1  Parkinson  v.  Collier,  Park,  470. 


556  THE    VOYAGE.      DURATION    OF   THE    PJSK.         [CHAP.  XI. 

goods  were  as  much  protected  by  the  policy,  in  the  boats,  while 
employed  as  auxiliary  to  the  voyage,  as  they  were  on  board  the 
ship."  1 

971.  A  policy  on  goods  till  safely  landed  terminates  on  land- 
ing at  the  usual  jjJose  of  discharging  cargoes  at  the  port  : 

As,  in  an  insurance  to  Leghorn,  the  landing  at  the  Lazaretto, 
about  half  a  mile  below  the  city.^ 

972.  JVhether  the  risk  on  goods  insured  until  twenty-four 
hours  after  they  are  safely  landed  will  terminate  on  parts  of  the 
cargo  successively  landed,  so  soon  as  each  part  has  been  landed 
for  that  period  ? 

In  a  IVew  York  case  under  a  policy  on  goods  to  Jamaica,  "and 
twenty-four  hours  after  the  goods  as  named  in  the  margin  are 
landed,"  against  illicit  trade,  among  other  risks,  when  a  part  of 
the  cargo  had  been  landed  over  twenty-four  hours,  the  goods 
landed,  and  those  still  on  board,  were  seized  as  illicit.  Mr.  Jus- 
tice Lansing,  giving  the  opinion  of  the  court,  said:  "The  insur- 
ance being' entire,  we  are  of  opinion  that  the  risk  continued  on 
the  entire  goods  until  twenty-four  hours  after  all  of  them  were 
landed."  3 

I  do  not  hesitate  to  doubt  this  decision,  and  state  it  as  the  better 
doctrine,  that  the  risk  terminates  on  each  parcel  at  the  end  of 
twenty-four  hours  after  it  is  landed. 

973.  If  the  assured  or  consignee  takes  charge  of  the  goods  in 
lighters  before  they  are  landed,  the  risk  ends,  though  by  the  policy 
it  runs  till  they  are  safely  landed.'^ 

974.  Insurance  being  on  a  shijj  and  the  cargo,  ''to  terminate 
when  she  might  receive  on  board  a  cargo  or  effects  with  the  intefi- 
tion  of  proceeding  to  the  L^nited  States,"  the  risk  was  held  not  to 
terminate  on  the  ship's  having  received  on  board,  from  other  ships, 
a  part  only  of  her  cargo.^ 


^  Parsons  v.  Mass.  Fire  &  Mar.  Ins.  3  Gardiner  v.  Smith,  1  Johns.  Cas. 

Co.,  C  Mass.  R.  197.  141. 

a  Gracie    v.    Marine    Ins.    Co.,    8  4  strong  r.  Nattally,  4  B.  &  P.  1 6  ; 

Cranch,  75.     See  also  Brown  v.  Car-  Low  r.  Davy,  5  Binn.  595. 

stairs,  3  Camp.  161.  5  "Ward  r.  Wood,  13  Mass.  R.  539. 


SECT.  III.]  SUSPENSION   OF   THE   RISK.  557 


SECTION    III.       SUSPENSION    OF    THE    RISK. 

975.  We  have  already  seen  that  the  risk  may  be  suspended 
during  a  temporary  non-compliance  with  the  implied  warranty  of 
seaworthiness.^  It  has,  it  is  true,  been  occasionally  asserted  by 
judges,  that  the  risk  cannot  be  so  suspended,  and  then  revive, 
without  an  express  provision  in  the  policy  for  the  purpose  ;2  and 
this  is  implied  in  many  cases,  more  particularly  those  involving 
the  question  of  apportionment  of  premium.  But  the  doctrine  that 
the  risk  may  be  suspended  and  again  revive  without  an  express 
provision  for  the  purpose,  seems  to  be  within  the  strictest  juridical 
principles.  The  stipulation  of  seaworthiness,  for  instance,  is  an 
implied  one,  about  which  the  parties  are  totally  silent  in  their  con- 
tract. When,  therefore,  the  courts  assume  it  to  be  part  of  the 
contract,  they  do  so  upon  the  ground  of  its  being  material,  and 
there  seems  to  be  no  reason  for  extending  it  further  than  it  is  so 
between  the  parties  ;  and  if  in  any  subsequent  stage  of  the  voy- 
age, or  other  term  of  the  risk,  the  ship  is  seaworthy,  it  is  wholly 
immaterial  that  she  was  temporarily  not  so,  at  some  prior  time 
after  the  risk  had  begun.  Jurisprudence  abounds  with  decisions 
that,  if  this  implied  warranty  is  not  complied  with  when  the  risk  is 
to  begin,  so  that  it  may  commence  within  the  terms  of  the  policy, 
the  contract  is  forfeited  and  void.  But  after  it  has  begun,  so  that 
the  premium  is  become  due,  it  surely  is  but  equitable  that  a  tem- 
porary non-compliance  should  have  effect  only  during  its  continu- 
ance. To  carry  it  further  is  to  inflict  a  penalty  upon  the  assured, 
and  decree  a  gratuity  to  the  insurer,  who  is  thus  permitted  to 
retain  the  whole  premium  when  he  has  merited  but  part  of  it.  A 
forfeiture  certainly  ought  not  to  be  extended  beyond  the  grounds 
on  which  it  is  incurred. 

The  question  then  arises,  whether  the  same  doctrine  is  applica- 
ble to  other  implied  stipulations  than  that  of  seaworthiness.  I  say 
"stipulations,"  for  the  accidental  more  frequent  use  of  the  terms 

1  Supra,  c.  8,  s.  2,  No.  734.  431 ;  and  see  2  Gaines's  Cas.  72,  per 

2  Mackenzie  v.  Shedden,  2  Camp.    Lansing. 

47* 


558  THE    VOYAGE.      DURATION    OF   THE   RISK.        [CIIAP.  XI. 

"warranty"  and  "condition,"  in  reference  to  seaworthiness, should 
not  affect  the  essential  principles  hy  which  the  construction  of  the 
contract  of  insurance  is  to  be  governed.  Because  the  leading 
early  cases  respecting  warranties  and  conditions  had  reference  to 
such  as  covered  the  whole  subject-matter  of  the  contract,  and  the 
whole  risk,  we  are  the  more  apt  to  assume  that  they  have  this  ap- 
plication generally,  which  is  by  no  means  necessary,  for  nothing 
prevents  a  warranty  or  condition  from  applying  to  the  divers  parts 
of  the  subject  or  of  the  risk,  when  it  can  be  so  applied  consistently 
with  the  nature  of  the  contract.  When,  therefore,  a  warranty  or 
condition  is  imposed  by  construction,  as  being  implied  and  pre- 
supposed by  the  parties  in  making  their  contract,  the  extent  to 
which  it  is  to  be  applied,  and  the  degree  of  forfeiture  to  be  incur- 
red by  non-compliance,  are  surely  proper  subjects  of  consideration. 
And  the  case  above  referred  to  suggests  a  general  rule  on  the  sub- 
ject, namely,  that  the  forfeiture  is  to  be  extended  only  far  enough 
to  put  the  other  party,  that  is,  the  insurer  in  this  case,  in  the  same 
condition  as  he  would  have  been  in  had  the  stipulation  been  com- 
plied with.  This  rule  will  always  operate  in  favor  of  the  insurer, 
and  against  the  assured,  but  only  comtnensurately  with  the  non- 
compliance on  the  part  of  the  latter. 

If  this  doctrine  is  fully  carried  out,  it  will  apply  to  an  implied 
warranty  or  condition  other  than  that  of  seaworthiness,  as,  for  in- 
stance, that  of  neutral  character  and  conduct,  where  the  warranty 
is  not  complied  with,  and  a  loss  happens  by  perils  of  the  seas 
wholly  independent  of  such  warranty. 

And  there  does  not  appear  to  be  any  good  reason  why,  in  the 
absence  of  all  fraud  and  of  all  prejudice  to  the  underwriter,  the 
same  doctrine  should  not  be  applicable  to  express  stipulations  in 
the  nature  of  warranties,  or  conditions,  unless,  by  the  circum- 
stances or  the  express  provisions  of  the  policy,  such  application  Is 
excluded.^ 

Thus,  where  a  cargo  is  insured  for  a  voyage,  and,  by  construc- 
tion of  the  policy,  the  risk  is  not  covered  while  the  goods  are  on 

1  Such  application  -will  be  excluded  or  otherwise  changes,  the  subsequent 
■where  the  non-compliance  enhances,     risks. 


SECT.  III.]  SUSPENSION   OP   THE   RISK.  559 

land,^  there  is  no  reason  why  it  should  not  revive  when  the  cargo 
is  again  put  on  board  the  ship.  In  this  and  other  cases,  while  the 
goods  are  not  exposed  to  any  of  the  perils  insured  against,  either 
by  not  conforming  to  the  description  in  the  policy,  or  because  they 
are,  for  a  time,  not  exposed  to  such  perils,  the  risk  temporarily 
ceases,  and  recommences  on  the  goods  being  again  brought  within 
the  situation  contemplated  by  the  parties  and  described  in  the 
policy.  The  risk  may  not  be  so  interrupted,  when,  by  the  action 
of  the  perils  insured  against,  or  for  the  due  prosecution  of  the  voy- 
age, the  subject-matter  is  put  out  of  the  condition  in  which  the 
policy  supposes  it  to  be.^ 

Fire  policies  may  contain  a  provision  for  a  suspension  of  the 
risk  in  certain  cases : 

As  in  case  of  any  certain  hazardous  trades  being  carried  on  in 
the  insured  building.^ 

The  circumstances  of  an  Ohio  case  seem  to  admit  of  this  con- 
struction. A  steamboat  being  insured  for  one  year  was  seized  and 
sold  under  a  judgment  upon  a  lien  securing  a  debt  due  from  a 
prior  owner.  The  assured  repurchased  it,  and  it  was  subsequently 
lost  within  the  year.  There  does  not  appear  to  have  been  any 
express  stipulation  that  the  policy  should  be  void  on  a  sale  of  the 
boat.  It  was  held  that  the  policy  had  been  forfeited  and  become 
extinct  by  the  sale.  The  boat  seems  to  have  been  within  all  the 
conditions  of  the  policy,  excepting  that,  by  reason  of  the  sale  and 
consequent  temporary  extinguishment  of  the  insurable  interest  of 
the  assured,  the  underwriters  were,  for  the  time,  exonerated  from 
liability,  and  so  seem  to  have  had  the  privilege  of  a  proportional 
gratuity  of  the  premium. 

The  case  does  not  show  any  legal  impediment  to  what  was 
obviously  the  equitable  construction  of  the  contract,  namely,  that 
the  risk  was  suspended.^     There  may  have  been  some  provisions 

1  Martin  v.  Salem  Mar.  Ins.  Co.,  2  3  Grant  v.  Howard  Ins.  Co.,  5  Hill, 
Mass.  K.  420.  10. 

2  Bondrett  v.  Hentigg,  Holt's  N.  P.  ^  Cockerill  v.  Cincinnati  Ins.  Co., 
Cas.  149 ;  Pelly  v.  Royal  Exch.  Ass.  16  Ohio  R.  149. 

Co.,  1  Burr.  341 ;  EUery  v.  New  Eng- 
land Ins.  Co.,  8  Pick.  14. 


560  THE   VOYAGE.      DURATION   OF   THE   RISK.         [CHAP.  XI. 

of  the  policy  or  some  circumstances  not  reported,  though  there 
seems  to  be  a  full  statement  of  the  case,  and  report  of  the  argu- 
ments of  counsel,  and  opinion  of  the  court. 

976.  In  case  of  a  stipulation  for  a  return  of  premium  ^^  for 
every  uncommenced  month  if  the  ship  should  be  laid  up,"  which 
was  in  effect  a  stipulation  for  the  suspension  of  the  risk  for  such 
months,  it  was  held  that  this  might  mean  a  permanent  laying  up, 
so  as  to  put  an  end  to  the  voyage  on  which  the  ship  was  em- 
ployed." 1 

1  Hunter  v.  Wright,  1  L.  &  W.  138 ;  S.  C,  10  B.  &  C.  714. 


CHAPTER    XII. 


DEVIATION  AND   CHANGE   OF  RISK. 


Sect.  1.  Of  deviation  and  change  of  risk 
in  general.    The  effect. 

2.  The  substitution  of  an  entirely 

other  voyage. 

3.  Change  of  the  risk  in  port.    Time 

and    manner    of  loading    and 
landing  cargo. 

4.  Varying  unnecessarily  from  the 

usual  course. 

5.  Intention  to  deviate. 

6.  Delay  after  the  risk  has  begun, 

either  in  port  or  on  a  passage. 

7.  Usage  will  justify  deflections  and 

delay  of  the  voyage. 

8.  Liberty  to  turn  from  the  direct 

or  usual  course,  or  to  delay,  or 
to  vary  from  the  usiial  risks. 

9.  Turning  off  and  delay  for  repairs 

or  to  refit. 


Sect.  10.  Turning  off  to  avoid  perils  in- 
sured against,  or  not  insured 
against. 

11.  Delay  for  the  purpose  of  suc- 

coring the  distressed,  or  to 
save  the  property  of  others. 

12.  Taking     letters     of     marque. 

Cruising.      Convoying. 

13.  Departures  from  the  route,  de- 

lays, and  changes  of  the 
risk,  not  imputable  to  the  as- 
sured. 

14.  Changes  of  the  risk  in  fire  poli- 

cies. 

15.  Changes  of  the  i-isk  in  hfe  poli- 

cies. 
IG.  Waiver  of  a  forfeiture  incurred 
by  deviation. 


SECTION    I. 


OF    DEVIATION    AND    CHANGE    OP    RISK    IN    GENERAL. 
THE    EFFECT. 


977.  Having,  in  the  preceding  chapters,  considered  the  condi- 
tions and  stipulations  relative  to  the  voyage  or  other  risk,  and  the 
limits  or  period  of  the  risk,  we  now  come  to  inquire  in  what  man- 
ner the  voyage  is  to  be  pursued  or  any  other  risk  is  to  be  run, 
and  what  acts  will  be  a  departure  from  it,  or  deviation,  which  is 
the  enhancing  or  varying  from  the  risks  insured  against  as  de- 
scribed in  the  policy,  without  necessity  or  just  cause,  after  the 
risk  has  hegun.^ 

978.  The  doctrine  of  deviation  has  reference  exclusively  to  the 
risks  insured  against  in  the  policy. 


1  See  Marsh.  Ins.  183;  1  Arnould,     R.  44  7,  for  definitions  of  deviation, 
341 ;  Roc.  n.  52;  Doug.  291 ;  13  Mass.     and  remarks  upon  it. 


562  DEVIATION   AND    CHANGE    OF   RISK.  [CHAP.  XII. 

Other  risks  may  be  incurred,  provided  it  appears  by  the  policy 
that  they  are  to  be  so,  and  the  contract  will  not  be  thereby  affected, 
though  the  risks  insured  against  are  thereby  affected.  So,  ektra- 
ordinary  and  unusual  risks  to  any  extent,  of  which  the  underwriters 
cannot  be  presumed  to  have  notice,  may  be  incurred  by  the  as- 
sured, provided  those  insured  against  are  not  thereby  affected  ; 
and  the  loss,  if  any,  by  such  superadded  risk,  is  clearly  distin- 
guishable : 

As  by  omitting  to  take  a  sea-letter,  in  case  of  its  not  being 
requisite  to  compliance  with  an  express  stipulation  :^ 

So  in  case  of  the  risks  under  the  policy  being  suspended  for  the 
time.^ 

979.  The  description  of  the  risks  insured  against  in  the  policy, 
and  referred  to  in  speaking  of  a  deviation  or  change  of  risk,  are 
those  specified  as  perils  of  the  seas,  fire,  capture,  detention,  &ic., 
on  a  certain  voyage  or  for  a  certain  period.  It  is  material,  accord- 
ingly, not  only  to  understand  what  species  of  perils  are  insured 
against  under  the  description  in  the  policy,  but  also  within  what 
time,  on  what  course  or  track,  within  what  geographical  limits, 
and  under  what  circumstances  and  qualifications,  the  underwriters 
stipulate  to  assume  such  risks,  since  the  enhancing  of  the  risks 
thus  assumed,  or  varying  from  them,  discharges  the  underwriters 
on  a  "policy  or  lender  on  bottomry  or  respondentia,  partially,  tem- 
porarily, or  absolutely,  from  their  liability  for  loss.^ 

The  language  describing  the  course  of  the  voyage  must  be 
taken  in  its  commercial  acceptation,  and  not  in  its  strict  geogra- 
phical meaning. 

A  ship,  of  which  the  freight  was  insured  from  Van  Diemen's 
Land  to  India  and  the  "Indian  Islands,"  and  thence  to  Europe, 
put  into  the  island  of  Mauritius.  Though  this  is,  geographically, 
an  African  island,  yet  it  was  held,  that  if,  in  commercial  language, 
it  was  an  "Indian  island,"  it  was  not  a  deviation."* 

'  Cleveland  v.  United  Ins.  Co.,  8  bottomry,  see  Marsh.  Ins.,  book  2,  c.  5, 

Mass.  II.  308.     See  also  Richardson  p.  756,  2d  cd.,  also  Western  v.  Wildy, 

V.  Maine  Ins.  Co.,  G  Mass.  R.  102.  Skin.  152. 

2  See  supra,  c.  11,  s.  3.  4  Robertson  v.  Clarke,  1  Bing.  445  ; 

3  As  to  the  cficct  of  deviation  in  8  Moore,  622. 


SECT.  I.]  IN    GENERAL.  563 

980.  After  the  explicit  provisions  of  the  policy,  usage  is  the 
predojninating  test  as  to  deviation  and  change  of  the  risk. 

Thus  usage  has  been  held  to  justify  a  whaling  vessel  in  enter- 
ing into  a  "mateship,"  as  it  is  termed  ;  namely,  an  agreement  to 
share  catchings.^ 

A  vessel  may  stop  at  usual  places  for  landing  and  taking  in 
passengers  and  goods,  or  for  other  purposes,  especially  in  river  or 
coasting  passages,  whether  under  a  policy  of  insurance,^  or  a  bill 
of  lading."' 

981.  By  a  "voyage  "  is  generally  understood  the  sailing  from 
one  port  to  another  with  all  practicable,  safe,  and  convenient 
expedition;  this  being  the  usual  way  in  which  a  voyage  is  per- 
formed. 

In  some  voyages,  however,  it  is  customary  to  prolong  the  risk 
by  touching  at  intermediate  ports,  as  in  India  voyages,  or  others 
of  great  length,  or  by  delaying  to  discharge  the  cargo  immediately 
after  arrival,  as  in  voyages  to  the  coast  of  Labrador  or  of  Africa  ; 
and  the  parties  are  supposed  to  be  acquainted  with  such  custom, 
and  have  it  in  contemplation  when  they  make  their  contract.  The 
meaning  of  the  parties  is  therefore  presumed  to  be,  that  the  voy- 
age is  to  be  pursued  in  the  most  direct  and  safe  course,  and  the 
adventure  conducted,  in  general,  in  the  most  expeditious  manner, 
as  far  as  is  consistent  with  safety;  and  if  there  is  any  departure 
from  such  course  or  mode  of  conducting  the  adventure,  whereby 
the  risks  insured  against  are  varied  or  increased,  it  behooves  the 
assured  to  justify  such  departure  by  showing  either  a  usage  in  that 
respect,  or  a  reasonable  necessity  for  it. 

Any  usage  as  to  the  course  or  mode  of  pursuing  a  voyage,  or 
any  variation  from  the  usual  manner  of  pursuing  and  conducting 
it  rendered  necessary  and  authorized  under  the  policy  by  the  cir- 
cumstances, thereupon  becomes  a  part  of  the  voyage  to  the  same 
effect  as  if  expressly  provided  for,  and  the  construction  as  to  any 
subsequent  deviation   or  change  of  risk  will   be  the  same  as  if 


1  Child  V.  Sun  Mutual  Ins.  Co.,  3         2  Lockett  v.  Merchants'  Ins.  Co.,  10 
Sandford's  N.  Y.  City  Sup.   Ct.  R.     Rob.  La.  R.  339. 
26.  3  Lowry  v.  Russell,  8  Pick.  3G0. 


564  DEVIATION   AND    CHANGE    OF   RISK.  [CHAP.  XII. 

such  prior  justifiable  deviation  had  been  expressly  so  provided 
for.i 

932.  The  propriety  of  changes  of  risJc,  delay,  and  departure 
from  the  direct  or  usual  course,  from  alleged  expediency,  is  to  be 
tested,  not  by  the  event,  but  by  the  circumstances  as  they  presented 
themselves  to  the  assured  or  his  agent  at  the  time,  acting  in  good 
faith  and  having  in  view  the  expeditious  and  safe  prosecution  of 
the  voyage  and  safety  of  the  property  at  risk.^ 

In  case  of  the  course  and  steps  being  so  taken,  the  underwriters 
will  be  liable  for  loss  by  the  perils  specified  in  the  policy  as  being 
insured  against,  though  the  loss  is  directly  consequent  upon  the 
measures  taken  for  safely  : 

As  where  a  damaged  boat  was  sunk,  in  consequence  of  being 
taken  in  tow,  at  the  request  of  the  master,  by  a  steamboat.^ 

So  Lord  Ellenborough  ruled,  that  taking  three  Spanish  prisoners 
of  war  on  board  of  a  merchant-vessel  as  passengers,  on  a  voyage 
from  the  Cape  of  Good  Hope  to  Buenos  Ayres,  did  not  discharge 
the  underwriters,  unless  there  was  reason  to  suppose,  at  the  time 
of  taking  them  on  board,  that  the  risk  would  be  thereby  materially 
enhanced,  which  he  intimated  that  there  was  not,"^  though  they 
joined  some  of  the  crew  and  seized  the  vessel  in  coming  into  the 
River  Plate. 

983.  It  is  not  necessary  to  a  deviation  or  change  of  risk, 
whereby  the  underwriters  are  discharged,  that  the  degree  or  period 
of  the  risk  should  be  thereby  increased.  The  assured  has  no 
right  to  substitute  a  different  risk.^ 

Transshipping  goods  insured  by  a  particular  vessel,  to  another, 
unnecessarily,  is  a  change  of  the  risk  which  discharges  the  insur- 
ers.^   So  also  it  discharges  the  lender  at  respondentia  from  the  riskj 

1  Harrington  v.  Halkeld,  Tark,  G30,  5  Hartley  v.  Buggin,  3  Doug.  39  ; 
8th  ed.  Hand  v.  Raynes,  4  Wheat.  204 ;  and 

2  Byrne  v.  Louisiana  State  Ins.  Co.,    see  cases  passim. 

7  Martin,  (s.  s.)  La.  R.  124,  per  Per-  6  Millar's    Lis.   394  ;    1  Emerigon, 

ter,  J. ;  also  Ciazzam  v.  Ohio  Lis.  Co.,  p.  425,  c.  12,  s.  16  ;  1  Burr.  3G1 ;  Mol- 

"NVright's  (Ohio)  11.  202.  loy,  c.  7,  s.  11 ;  Oliverson  r.  Brighman, 

3  Stewart  v.  Tennessee  Lis.  Co.,  1  8  Ad.  &  El.  (n.  s.)  781;  Bold  i'.  llo- 
Humphrey,  242.  theram,  id.  797. 

4  Toulmin  r.  Ligli.i,  1  Camp.  421.  '  Code  de  Commerce,  a.  324. 


SECT,  l]  in  general.  565 

Under  liberty  to  "touch  at  the  Cape  De  Verd  Islands,  for  the 
purchase  of  stock,  such  as  hogs,  goats,  and  poultry,  and  taking  in 
water,"  the  taking  in  of  four  bullocks  and  as  many  asses,  was  held 
by  the  Supreme  Court  of  the  United  States  to  be  a  variation  of  the 
risk  whereby  the  underwriters  were  discharged,  although  the  jury 
found  that  no  delay  was  occasioned,  and  the  navigation  of  the 
ship  was  not  thereby  embarrassed. ^ 

984.  The  doctrine  of  deviation  has  reference  to  voluntary  acts, 
or  to  neglects,  and  not  to  unavoidable  interruptions  of  the  voyage  ; 

Such  as  the  vessel  being  driven  from  the  course  in  a  storm  ; 
Or  being  taken  possession  of  by  a  mutinous  crew.^ 
But  in  case  of  a  master  of  a  vessel  going  out  of  harbor  by  order 
of  the  captain  of  a  frigate  lying  near,  to  examine  a  strange  sail. 
Lord  Ellenborough  ruled  it  to  be  a  deviation,  remarking  that,  if  he 
had  gone  by  compulsion,  and  under  threat  or  just  fear  of  violence, 
it  would  not  have  been  so.-' 

985.  The  exposure  of  the  goods  in  a  greater  degree  to  the 
perils  of  the  sea  hy  stowing  them  on  deck,  is  an  enhancement  of 
the  1-isJc  whereby  the  underwriter  upon  them  is  discharged  during 
their  being  so  carried,  unless  he  has  notice  from  the  nature  of  the 
article  as  specified  in  the  policy,  or  the  usage  of  the  navigation, 
that  they  are  to  be  carried  in  that  manner.'* 

Where  the  carrying  of  goods  on  deck  does  not  impede  the  navi- 
gation of  the  vessel,  it  is  not  a  change  of  the  risk  under  a  policy 
upon  the  vessel  ;^  nor  under  one  upon  the  rest  of  the  cargo  under 


1  Maryland  Ins.  Co.  v.  Lc  Roy,  7  see  Driscol  v.  Bovil,  1  B.  &  P.  313  ; 
Craneh,  26.  See  remarks  upon  this  and  Driscol  v.  Passmore,  id.  200. 
case  by  Marshall,  C.  J.,  in  Hughes  v.  ^  Phelps  v.  Auldjo,  2  Camp.  350. 
Union  Ins.  Co.,  3  Wheat.  159.  In  ^  gee  supra,  No.  460,  and  cases  there 
what  way  the  court  considered  the  cited.  Brooks  v.  Oriental  Ins.  Co.,  7 
risk  to  be  varied,  other  than  in  those  Pick.  259  ;  Blackett  v.  Royal  Exch. 
negatived  by  the  jury,  does  not  ap-  Ass.  Co.,  2  Crompt.  &  J.  244 ;  Greery 
pear  ;  and,  therefore,  the  case  is  of  v.  Holley,  14  Wend.  35  ;  and  2  Vahn, 
no  authority  except  to  the  doctrine  of  p.  203,  Ins.  a.  13,  n.,  and  1  id.  p.  397, 
all  the  cases,  that  the  underwriters  tit.  Du  Capitaine,  a.  12,  n.;  The  Ca- 
are  discharged  by  an  unnecessary  listo,  Daveis's  Dist.  C.  R.  29  ;  Lapham 
change  of  the  risk.  v.  The  Atlas  Ins.  Co.,  24  Pick.  1 . 

2  Elton  V.  Broden,  2  Str.  1264 ;  and         5  Lapham  v.  The  Atlas  Ins.  Co.,  24 

VOL.  I.  48 


566  DEVIATION   AND    CHANGE    OF   RISK.  [CHAP.  XII. 

deck ;    nor  upon   the    goods    under   deck    insured    in    the   same 
policy.^ 

936.  A  voyage  is  commonly  characterized  in  part  by  its  im- 
plied or  expressed  object,  as  mercantile,  cruising,  or  fishing,  and 
particular  limits  or  species  of  either,  and  it  will  be  a  different  voy- 
age or  a  deviation  to  go  for  another  object,  or  out  of  the  local 
limits  specified,  or  on  a  different  species  of  the  same  general  pur- 
suit.2 

987.  The  doctrine  of  deviation  is  applicable  to  river  and  lake 
navigation :  ^ 

As  in  casepf  a  steamboat  taking  other  boats  in  tow,  where  there 
is  no  usage  so  to  do  in  like  circumstances.^ 

988.  The  borrower  on  bottomry  is  affected  by  the  doctrine  of 
deviation  no  less  than  the  assured  in  a  policy.^ 

989.  The  effect  of  a  deviation,  as  in  the  case  of  unseaworthi- 
ness,^ if  temporary,  without  subsequently  affecting  the  risks  insured 
against,  is  to  suspend  the  risJc ;  or,  if  in  consequence  of  the  devi- 
ation the  risks  insured  against  are  affected  and  changed  during  the 
remaining  period  of  the  policy,  the  effect  is  to  discharge  the  under- 
writers from  liability  for  any  subsequent  loss  ;  '  but  they  still 
remain  liable  for  a  prior  one.^ 

It  has  been  said,  that  a  delay  of  an  hour  or  deviation  of  a  mile 
discharges  the  underwriters,^  but  the  law  does  not  regard  such 
inconsiderable  circumstances  ;  it  is  satisfied  with  reasonable  dili- 
gence and  despatch. 

Pick.  1 ;  llilward  v.  Hibbard,  3  Ad.  &  4  Hermann  r.  Western  ]Mar.  &  Fire 

El.  (x.  s.)  120.  Ins.  Co.,  15  La.  R.  by  Curry,  517. 

1  Adams  v.  Warren  Ins.  Co.,  22  5  Harman  v.  Yanbattan,  2  Yem. 
Pick.  163;  Lapham  v.  Atlas  Ins.  Co.,  717  ;  Western  t'.  Wildy,  Skin.  152; 
21  id.  1.  Williams  r.  Stedman,  id.  3i5 ;  Holt's 

2  See  Child  r.  Sun  Mut.  Ins.  Co.,  3  R.  126. 
Sandford's  N.  Y.  City  Sup.  Ct.  R.  6  Supra,  2,  No.  734. 

26.  7  2  Salk.  444 ;  2  Ld.  Raym.  840  ;  6 

3  Gazzam  v.  Ohio  Ins.  Co.,  Wright's  Mass.  R.  121 ;  7  id.  352  ;  9  id.  447. 
(Ohio)  R.  202 ;  JoUy's  Ex'rs  v.  Ohio        8  Hare  v.  Travis,  7  B.  &  C.  14. 
Ins.  Co.,  1  id.  539.  9  9  Iklass.  R.  449. 


SECT.  II.]  THE   SUBSTITUTION    OF   ANOTHER   VOYAGE.  567 


SECTION    II.        THE    SUBSTITUTION    OF    AN    ENTIRELY    OTHER 
VOYAGE. 

990.  There  is  an  important  distinction  between  the  substitution 
of  another  entire  voyage  at  the  outset,  and  a  change  of  the  risk 
after  the  voyage  is  begun. 

In  the  former  case  the  contract  does  not  take  effect,  and  the 
premium  may  be  reclaimed,  where  the  contract  is  made  through 
mistake  and  without  fraud,  and  the  insurer  could  have  defended 
himself  against  a  claim  for  loss ;  in  the  latter  case  the  contract 
takes  effect  partially,  and  the  premium  is  not  reclaimable. 

The  circumstances  under  which  the  risk  will  commence,  under 
a  policy  upon  the  different  insurable  subjects,  have  already  been 
considered.!  We  have  seen  that  the  policy  "at"  a  place  attaches 
when  one  "  from "  it  would  not,  and  the  same  policy  on  ship, 
cargo,  and  freight,  may  attach  on  the  ship,  and  not  on  the  other 
interests. 

991.  Though  the  ship  is  at  the  place  where  the  risk  is  to  begin, 
or  sails  from  the  port  of  departure  specified  in  the  policy,  the 
policy  will  not  attach  if  anoiher  entirely  different  voyage  is 
intended? 

This  may  happen  by  reason  of  mistake  in  describing  the  risk, 
or  the  distance  and  misunderstanding  between  the  assured  and  his 
agent  for  effecting  the  insurance  or  having  charge  of  the  subject 
insured. 

992.  In  case  the  vessel  or  other  interest  insured  is  at  the  place 
^^ at"  which  the  risk  under  the  policy  is  to  begin,  but  is  fitting 
out  or  loading  for  another  port  of  destination  than  that  named  in 
the  policy,  or  in  case  a  vessel  insured  ^^from^^  a  place  sails  from 
such  place  for  another  port  of  destination,  there  being  no  inten- 
tion to  proceed  to  that  named  in  the  policy,  where  the  course  of  a 
voyage  to  the  two  is  the  same  for  some  distance,  the  voyage  or 


J  Supra,  c.  11,  s.  1.  Cours  de  Droit  Com.  Vol.  III.  p.  414, 

2  See  Sellar  v.  M'Vicar,  4  B.  &  P.     tit.  10,  s.  9  ;  Emerigon,  Vol.  II.  p.  47, 
23  ;   supra,   No.  920  ;   Boulay  Paty,     c.  13,  s.  10. 


568  DEVIATION   AND    CHANGE    OP   RISK.  [CHAP.  XII. 

risk  actually  begun  is  a  differeyit  one  from  that  insured  iipon, 
provided  the  intention  of  proceeding  on  such  other  voyage  is  so 
manifested  by  the  assured  or  his  agents,  that  the  underwriters  have 
good  means  of  proving  it.^ 

In  case  of  positive  orders  to  take  the  most  northern  of  two  dif- 
ferent courses  from  a  certain  point,  on  a  voyage  from  London  to 
Jamaica,  for  the  purpose  of  landing  some  stores  at  Cape  Nicola 
Mole,  in  St.  Domingo,  instead  of  leaving  the  election  to  be  made 
by  the  master  at  the  dividing  point,  as  was  usual  on  that  voyage, 
no  notice  of  such  order  being  given  to  the  underwriters,  Lord 
Kenyon,  C.  J.,  and  Ashhurst,  J.,  and  Grose,  J.,  considered  the 
case  to  be  one  of  concealment.  Lawrence,  J.,  considered  it  to  be 
one  of  deviation,^  that  is,  the  substitution  of  another  voyage  from 
the  branching  point,  because  it  did  not  appear  that  the  master  had, 
in  fact,  voluntarily  taken  the  northern  course  at  the  branching  point 
from  preference.  Mr.  Arnould  considers  this  to  be  a  different 
voyage  at  the  outset.^  But  his  references  do  not  appear  to  me  to 
support  such  a  construction.^ 

A  cargo  being  insured  "from  New  York  to  St.  Andero,"  in 


1  See  Marsden  v.  Reid,  3  East,  572 ;  spect  to  the  present  inquiry.  It  seems 
and  see  Palmer  v.  ^Marshall,  8  Bing.  to  me  to  be  a  mere  intention  to  devi- 
79;  Palmer  v.  Penning,  9  id.  460;  ate  until  arrival  at  the  branching  point. 
Wooldridge  v.  Boydell,  Doug.  16.  So  Mr.  Justice  Lawrence  considered 

2  Middlewood  v.  Blakes,  7  T.  R.  it,  for  he  thought  that  a  loss  before 
162,  stated  more  fully  supra,  No.  582.  coming  to  the  branching  point  would 
See  also  Carter  v.  Royal  Exch.  Ass.  have  been  recoverable.  The  actual 
Co.,  2  Str.  1249,  and  2  Duer,  Mar.  destination  was  to  the  terminus  ad 
Ins,  491.  quem  specified  in  the  policy,  and  the 

3  Vol.  I.  p.  33.  proposed  touching    at   Cape  Nicola 
*  They  are  Boulay  Paty,  Cours  de  Mole  was  for  the  incidental  purpose 

Droit  Com.,  tit.  10,  s.  9,  and  Emcri-  of  delivering  some  stores  there,  which 

gon.  Vol.  II.  p.  47,  c.  13,  s.  10.     The  constituted  no  considerable  part  of  the 

instances  given  as  those  of  a  dificrent  cargo.    I  do  not  see  how  the  case  can 

voyage  are  of  a  different  port  of  des-  be  distinguished  from  any  other  of  an 

tination  of  the  cargo.     Emerigon,  in  originally  intended  deviation  from  the 

his  awards  reported  by  him,  put  the  course  of  the  specified  voyage,  or  un- 

claims  for  loss  and  that  for  a  return  of  justifiable  delay,  or  other  originally 

premium  as  alternatives  to  each  other,  intended  forfeiture  of  the  policy, 
which  they  certainly  siiould  be  in  re- 


SECT.  II.]       THE   SUBSTITUTION   OF   ANOTHER   VOYAGE.  569 

Spain,  the  vessel  cleared  and  sailed  for  Hamburg,  and  the  goods 
were  shipped  for  that  port,  which,  from  the  whole  evidence,  ap- 
peared to  be  her  destination.  On  arriving  off  Cape  Ortegal,  on 
account  of  the  season  being  unfavorable  for  proceeding  to  Ham- 
burg, she  was  proceeding  towards  St.  Andero  to  put  in  there  and 
wait  for  a  more  favorable  time  to  resume  her  voyage  to  Hamburg, 
when  she  was  captured.  It  was  held  by  Lewis,  C.  J.,  and  Rad- 
cliff,  J.,  of  the  Supreme  Court  of  New  York,  that  the  voyage 
insured  had  never  commenced,  and  that  the  premium  should  be 
returned. 1 

A  different  doctrine  was  intimated  in  another  New  York  case 
by  Livingston,  J.,  giving  the  opinion  of  the  court,^  and  by  Lan- 
sing, Chancellor,  in  the  Court  of  Errors,^  respecting  a  vessel  insured 
from  Barcelona,  in  Spain,  to  Baltimore,  and  a  loss  at  Barcelona, 
the  vessel  being  alleged  to  have  been  destined  to  Havana.  The 
better  doctrine  is,  however,  as  above  stated. 

The  fact  of  a  different  terminus  ad  quern  of  the  voyage  from 
that  specified  in  the  policy  is  material  in  this  inquiry  : 

As  in  case  of  a  vessel  insured  "  at  and  from  Maryland  to  Cadiz," 
which  was  fitted  out  and  loaded,  and  sailed  for  another  port  of 
destination.* 

A  s^ip  being  insured  "at  and  from  20th  October  from  any  ports 
in  Newfoundland  to  Falmouth,  in  England,"  in  continuation  of  a 
previous  policy,  had  left  a  port  of  Newfoundland  on  the  1st,  and 
fished  on  the  Banks  until  the  7th,  and  then  sailed  for  England, 
and  was  lost.  Buller,  Ashhurst,  and  Grose,  Justices,  decided  that 
she  was  not  on  the  voyage  insured,  on  account  of  not  having  sailed 
on  the  voyage  described  in  the  policy  from  Newfoundland  to  Eng- 
land, but  from  the  former  place  to  the  Banks.^ 

The  terminus  a  quo  of  the  risk  in  this  case  was  the  20th  Octo- 

1  Forbes  v.  Church,  3  Johns.  Cas.  ^  Way  v.  Modigliani,  2  T.  K.  30. 
159.  This  decision  is  put  by  Mr.  Justice 

2  Steinbach  v.  Columbian  Ins.  Co.,  Buller  upon  the  authority  of  Wool- 
2  Caines,  132.  dridge  v.  Boydell,  but  in  that  case 

3  Smith  V.  Steinbach,  2  Caines's  the  vessel  did  not  sail  for  the  port  of 
Cases  in  Error,  158.  destination  to  which  she  was  insured. 

4  Wooldridge  v.  Boydell,  Doug.  16. 

48* 


570  DEVIATION    AND    CHANGE    OF   RISE.  [CHAP.  XII. 

ber  ;  that  of  the  voyage  was  a  port  of  Newfoundland.  Mr.  Justice 
Buller  says,  that  it  is  not  necessary  under  such  a  policy  that  the 
vessel  ''should  be  in  port  when  it  attaches,  but  she  must  have 
sailed  on  the  voyage  insured."  The  case  turns  upon  this  last 
proposition,  which  is  plainly  erroneous.  What  does  it  import 
where  the  vessel  has  been,  or  sailed  from  or  to,  before  the  risk 
attaches  ?  If  she  is  then  within  the  terms  of  the  policy,  that  is  to 
say,  if  she  is  on  the  specified  voyage,  as  the  vessel  in  this  case 
confessedly  was,  the  terms  of  the  description  are  satisfied.  Her 
being  early  or  late  in  respect  of  the  season,  may  render  such  a 
description  an  implied  misrepresentation,  if  her  being  so  is  mate- 
rial ;  but  as  Mr.  Justice  Buller  himself  implicitly  says,  in  his  words 
just  quoted,  that  is  of  no  importance  in  identifying  the  voyage. 

Accordingly,  a  direct  contrary  decision  has  been  made  in  Mas- 
sachusetts.^ 

Courts  have  made  the  termini  the  criterion  of  identity  and  diver- 
sity in  respect  of  voyages.  These  are  important  characteristics  in 
insurance  between  local  termini,  but  not  applicable  to  time  poli- 
cies, and  in  voyage  policies  there  may  be  different  descriptions  of 
voyages  between  the  same  termini,  by  reason  of  the  employment 
of  the  vessel  or  objects  of  the  voyage  being  different.-  The  ques- 
tion of  identity  in  respect  to  voyages  will  sometimes  be  difficult  to 
jurisconsults,  as  it  is  to  casuists  and  metaphysicians  in  other  cases ; 
but  where  the  rights  and  interests  of  persons  are  concerned,  the 
propriety  of  cutting  the  knot  by  some  inflexible  arbitrary  rule  is  very 
questionable,  though  it  may  alleviate  juridical  labor  and  respon- 
sibility. Though  the  local  termini  are  important  characteristics  in 
deciding  on  the  identity  or  diversity  of  the  voyage  insured  and 
that  actually  undertaken,  I  cannot  think  that  there  is  good  ground 
for  the  doctrine  that  this  is  an  indispensable  criterion. 

993.   Sailing  on  the  track  to  the  specified  port  of  destination 

1  Martin  v.  Fishing  Co.,  20  Pick.  2  gge    remark    of    Thompson,    J., 

389;  supra,  No.  928.    Sec  also  Manly  giving    the    opinion    of    the    court, 

1-.  United  Mar.  &  Fire  Ins.  Co.,  9  Marine  Ins.  Co.  v.  Tucker,  3  Cranch, 

Mass.  R.   85,  supra,  No.  928;   and  357. 
Kent  V.  Manufacturers'  Ins.  Co,  18 
Pick.  19;  supra,  No.  928. 


SECT.  III.]  CHANGE    OF   THE   RISK   IN   PORT.  571 

with  an  inteniion  conditionally  to  'proceed  to  that  or  another  port, 
at  some  certain  stage  of  the  voyage,  according  to  the  inteingence 
then  received,  is  an  inception  of  the  voyage  insured.^ 

994.  The  clearing  from  a  port  different  from  that  to  ivhich 
the  ship  is  insured,  and  for  which  it  actually  sails,  does  not  maJce 
the  voyage  another  than  that  insured.'^ 

995.  If  the  ship  is  not  at,  or  does  not  proceed  from,  the  place 
at  or  from  which  it  is  insured,  within  a  reasonable  time,  though 
it  may  be  there  or  sail  thence  subsequently,  the  actual  risk  or 
voyage  ivill  he  another  than  the  one  agreed  for  by  the  policy.^ 

A  ship  being  insured,  February,  1824,  from  "Batavia  and  Sin- 
capore,  to  her  port  of  discharge  in  Europe,"  had  sailed  from  Lon- 
don, September,  1823,  and  owing  to  unnecessary  delay  did  not 
arrive  at  Sincapore  until  March,  1825.  It  was  held  by  Tindal, 
C.  J.,  and  his  associates  of  the  English  Common  Pleas,  that  the 
policy  did  not  attach.'* 


SECTION    III.       CHANGE    OF    THE    RISK    IN    PORT.       TIME    AND    MAN- 
NER   OF    LOADING    AND    LANDING    CARGO. 

996.  A  change  of  the  risks  insured  against,  whereby  the  under- 
writers tvill  be  discharged  from  subsequent  liability,  may  be  made 
at  the  port  of  departure  or  olher  place  ivhcre  the  risk  begins,  after 
it  has  begun,  no  less  than  at  subsequent  stages.^ 

A  ship  insured  "during  one  month's  remaining  in  Portsmouth 
harbor,  securely  moored,"  was  removed  twice,  which  was  objected 
to  as  changing  the  risk  ;  but  Lord  Ellenborough  said,  "The  terms 
of  the  policy  warranted  a  removal  within  the  harbor."^ 


1  Heselton  v.  Allnutt,  1  M.  &.  S.  46.        4  Mount  v-  Larklns,  8  BIng.  108. 

2  Henkle  v.  Royal  Exch.  Ass.  Co.,  5  Taylor  v.  Lowell,  3  Mass.  R.  331 ; 
1  Ves.  317  ;  Barnewall  v.  Church,  1  Merchants'  Ins.  Co.  v.  Clapp,  11  Pick. 
Caines,  217;    Talcot  v.  Marine  Ins.  56. 

Co.,  2  Johns.  130 ;  Planch6  v.  Fletcher,        6 v.  Westmore,  6  Esp.  109. 

Doug.  238.  See  also  Bell  v.  Western  Fire  &  Mar. 

3  Courtnay  v.   Mississippi   Fire   &  Ins.  Co.,  5  Rob.  (La.)  R.  423. 
Mar.  Ins.  Co.,  2  La.  R.  233 ;  supra. 

No.  923. 


572  DEVIATION   AND    CHANGE    OF   RISK.  [CHAP.  XII. 

997.  The  mere  specification  of  the  voyage  includes  the  usual 
place  and  mode  of  putting  on  board  and  landing  the  cargo : 

As  taking  a  part  of  it  inside,  and  the  remainder  outside,  of  a  bar 
at  Oporto  :  ^ 

Taking  goods  on  board  in  boats :  ^ 

Discharging  hides  in  lighters  at  New  York  :  ^ 

Discharging  goods  into  a  store-ship  at  Gibraltar,  being  an  inter- 
mediate port,  instead  of  landing  them.* 

998.  Goods  being  insured  until  landed,  any  unusual  and  unrea- 
sonable delay  in  landing  them  has  the  effect  of  a  deviation.^ 

It  is  usual,  in  some  trading  voyages,  to  keep  goods  on  board  until 
they  are  sold,  and  in  fishing  voyages  to  keep  the  outward  cargo 
on  board  for  consumption  ;  ^  and  the  goods  are  accordingly  pro- 
tected by  the  policy  while  kept  on  board  in  port  in  conformity  to 
such  usage,  or  to  the  necessities  or  convenience  of  the  voyage. 

999.  Where  the  vessel  is  in  port  for  repairs  or  orders,  or  any 
other  purpose  than  trading,  or  landing  or  taking  in  cargo,  it  is  not 
a  change  of  the  risk  whereby  the  insurers  are  discharged,  to  trade 
or  land  or  taJce  on  board  goods,  if  no  delay  or  enhancement  of  the 
risk  is  occasioned  thereby^ 

1  Kingston  I'.  Knibbs,!  Camp.  508,  n.  Cormack  v.  Gladstone,  11  East,  347; 

2  Coggeshall  V.  American  Ins.  Co.,  Laroche  v.  Oswin,  12  East,  131; 
3  "Wend.  283  ;  supra.  No.  940.  Hughes  v.  Union  Ins.  Co.,  3  Wheat. 

3  Wadsworth  v.  Pacific  Ins.  Co.,  4  159.  A  different  doctrine  has  been 
Wend.  33.  See  also  Coggeshall  v.  stated  in  a  few  instances,  per  Lord 
American  Ins.  Co.,  3  Wend.  283.  Kenyon,  Stitt  r.  Wardell,  Park,  Ins. 

4  Tierney  v.  Etherington,  stated  by  438  ;  S.  C,  2  Esp.  R.  610 ;  which  Sir 
Lord  Mansfield,  1  Burr.  348.  James  Mansfield  said  was  a  sudden 

5  Parkinson  v.  Collier,  Park,  470.  answer  by  Lord  Kenyon  to  a  sudden 
See  Doug.  510.  question,  1  Taunt.   45G  ;    and    Lord 

6  Noble  V.  Kenoway,  Doug.  492;  Ellenborough  ruled  against  taking  in 
Vallance  v.  Dewar,  1  Camp.  503  ;  cargo,  though  without  delay,  and  when 
Ougier  V.  Jennings,  id.  505.  the   vessel  had    leave   to   discharge, 

7  Paine  r.  Columbian  Ins.  Co.,  2  Sheriff  r.  Potts,  5  Esp.  96.  But  these 
Johns.  204 ;  Kaine  v.  Bell,  9  East,  cases  have  been  overruled  by  Raine 
195  ;  Delanoy  v.  Stoddart,  1  T.  R.  22 ;  v.  Bell,  supra,  as  expressly  stated  by 
Gilbert  v.  Redshaw,  Marsh.  Ins.  208  ;  Lord  Ellenborough,  in  Laroche  i'- 
Kingston  i'.  Girard,  4  Dall.  274  ;  Kane  Oswin,  supra. 

V.  Columbian  Ins.  Co.,  2  Johns.  204 ; 


SECT.  IV.]  VARYING   FROM   THE   USUAL   COURSE.  573 

The  adopting  of  a  mode  of  repairing  recently  come  into  frequent 
use,  and  not  a  mere  first  experiment,  is  not  a  change  of  tlie  risk  in 
port  equivalent  to  a  deviation  : 

As  hauling  up  a  vessel  on  a  marine  railway,  early  after  that 
mode  of  repairing  was  introduced,  and  when  it  had  become  fre- 
quent.^ 


SECTION  IV.      VARYING  UNNECESSARILY  FROM   THE    USUAL  COURSE. 

1000.  Unnecessarily  or  without  siijicient  reason  going  off  the 
usual  course  of  the  voyage,  if  there  be  such,  or,  otherwise,  ivhat 
the  master  deems  the  most  direct  or  expeditious,  safe,  and  convenient 
course,  is  a  deviation  : 

As  on  a  passage  from  Dartmouth  to  Liverpool,  putting  into  Loo, 
which  vessels  on  that  passage  usually  pass  without  putting  in  :  ^ 

Or  into  Dover  on  a  voyage  from  Dunkirk  to  Leghorn  :  ^ 

Or  going  outside  of  Long  Island  in  a  voyage  from  New  York 
to  Norwich,  instead  of  waiting  until  the  usual  track  through  the 
sound  should  be  open,  the  same  having  been  obstructed  by  ice  at 
the  time,  unless  justified  by  usage.^  But  if  this  were  considered 
to  be  an  extraordinary  emergency,  and  the  going  outside  on  that 
course  were  taken  in  good  faith  as  the  best  way  of  prosecuting  the 
voyage,  it  would  be  justified,  and  not  a  deviation. 

Lender  a  policy  on  a  vessel  from  a  "port"  in  North  America  to 
Liverpool,  it  was  held  to  be  a  deviation,  after  loading  partly  at 
Cockagne,  in  New  Brunswick,  to  take  the  remainder  of  the  cargo 
at  Bouctouche,  seven  miles  distant  and  farther  from  Liverpool,  the 
custom-house  of  each  port  being  subject  to  that  of  St.  John's.^ 

It  is  not  a  deviation  to  go  off  the  course  from  necessity,  for  the 
purpose  of  the  voyage  and  the  safety  of  the  lives  and  property  on 
board,  as  will  subsequently  more  fully  appear.^ 


1  Ellery  v.  New  England  Mar.  Ins.  5  Brown  r.  Tayleiir,  4  Ad.  &  El. 
Co.,  8  Pick.  14.  241 ;  S.  C,  5  Nev.  &  M.  472. 

2  Fox  V.  Black,  Park,  488.  6  Campbell  v.  Williamson,  2  Bay, 

3  Townson  v.  Guyon,  Park,  438.  (S,  Car.)  237  ;  and  see  infra,  s.  7,  8,  9, 

4  Crosby  v.  Fitch,  12  Conn.  K.  410.  10,  11. 


574  DEVIATION   AND    CHANGE    OF   RISK.  [CHAP.  XII. 

By  whatever  Stipulation  or  necessity  a  departure  from  the  usual 
track  to  touch  at  any  place  is  justified,  the  master  must  follow  the 
usual,  or  most  direct,  convenient,  and  safe  course  from  such  place 
towards  the  ulterior  destination. i 


SECTION    V.        IXTENTIOX    TO    DEVIATE. 

1001.  An  intention  to  deviate  from  a  voyage  or  risk  once  he- 
gun,  has  no  effect  until  something  is  voluntarily  done  in  pursuance 
of  such  intention  whereby  the  risk  is  actually  changed.^ 

In  other  words,  if  the  intention  is  to  change  the  whole  voyage 
or  risk,  it  is  another  voyage ;  if  only  a  part  of  it  subsequent  to  its 
commencement,  this  is  an  intention  to  deviate.  The  distinction  is, 
as  we  shall  see,  not  free  from  subtilty  and  difficulty,  and  at  the 
same  time  it  is  important,  since,  whatever  doctrine  or  construction 
is  adopted,  it  must  involve  the  alternative  of  a  claim  for  a  loss  or  a 
return  of  the  premium  ;  and  the  rule  must  operate  consistently  in 
the  different  cases  of  the  fortunate  and  unfortunate  result  of  the 
voyage,  so  far  as  loss  by  the  perils  insured  against  is  concerned. 

So  long  as  the  intention  in  doing  acts  in  preparation  for  a  voy- 
age, or  prosecuting  it.  is  mixed  with  an  intention  of  beginning  it 
and  subsequent  deviation,  the  risk  will  commence  and  run."^ 

That  a  mere  intention  to  deviate  is  not  of  itself  a  deviation  has 
always  been  the  received  and  undisputed  doctrine,  and  is  nothing 
more  than  the  assertion  of  a  principle  that  is  common  to  this  and 
other  branches  of  jurisprudence  ;■* 

As  in  case  of  an  intention  to  deliver  some  salt  at  Falmouth, 
taken  to  be  delivered  there,  on  a  voyage  from  Carolina  to  Lisbon, 

1  Clark  f.  United  Mar.  &  Fire  Ins.  M'Cord,  503;  Thompson  v.  Barker, 
Co.,  7  Mass.  R.  365 ;  Guibert  v.  Read-  1  Root's  R.  64  ;  1  Arnould's  Mar.  Ins. 
shaw,  Park,  Ins.  454  ;  Neilson  i-.  Co-     345. 

lumbian  Ins.  Co.,  3  Caines,  108 ;  S.  C,  3  Heselton  v.  Alnutt,  1  M.  &  S.  46. 

1  Johns.  301 ;  Lavabre  f.  Walter,  and  •*  Hogg  v.  Horner,  Park,  Ins.  444  ; 

same  PlfT.  r.  Wilson,  Doug.  271.  Bain    v.    Kippen,   Millar,   Ins.  445; 

2  Hare    r.   Travis,   7  B.  &  C.  14;  Bynk.  Quaes.  Jur.  Priv.,  1.  4,  c.  3. 
M'Fee  v.  South  Carolina  Ins.  Co.,  2 


SECT,  v.]  INTENTION  TO   DEVIATE.  575 

and  thence  to  Bristol,  and  capture  on  the  common  course  to  both 
Bristol  and  Falmouth  :  ^ 

And  that  of  insurance  "from  Honduras  to  London,"  where  the 
master  took  goods  to  be  delivered  at  Amsterdam,  and  loss  before 
turning  off:  ^ 

And  that  of  instructions  and  an  intention  to  touch  at  Cork  on  a 
voyage  from  Grenada  to  Liverpool,  and  loss  before  turning  off;  ^ 

And  that  of  an  intention,  on  a  voyage  from  Heligoland  to  Me- 
mel,  to  go  off  the  course  to  Gottenburg  for  advice  whether  to  pro- 
ceed to  Memel  or  Anhalt,  and  while  on  the  common  course  to 
both  Memel  and  Gottenburg,  being  driven  by  a  gale  under  the 
batteries  of  Shegan  and  captured  :  ^ 

And  that  of  an  intention,  on  a  voyage  "at  and  from  Newry,  in 
Ireland,  to  New  York,  to  land  passengers  at  Halifax  in  Nova 
Scotia,  taken  on  board  to  be  there  landed,  and  loss  by  striking  on 
a  rock  in  proceeding  down  the  Irish  Channel  on  the  common 
course  to  Halifax  and  New  York  :  ^ 

And  that  of  taking  goods  to  be  delivered  at  Baltimore,  intend- 
ing to  touch  there  to  deliver  them  on  a  voyage  "at  and  from 
Kingston,  in  Jamaica,  to  Alexandria,  in  Virginia,"  and  capture  on 
the  common  route  to  the  two  places.^ 

So  being  driven  by  necessity  into  Weymouth,  where  the  master 
had  intended  to  have  touched  independently  of  any  such  necessity, 
on  a  voyage  from  Cork  to  London,  was  held  not  to  be  a  deviation, 
because  nothing  had  been  voluntarily  done  in  pursuance  of  such 
intention.'^ 

A  parallel  case  was  similarly  decided  in  Massachusetts,  where 
the  master  was  compelled  by  stress  of  weather  to  put  into  Mar- 
tha's Vineyard,  where  he  intended  to  stop  to  deliver  goods  taken 


1  Per  Lee,  C.  J.,  and  his  associates,  ^  Heselton  v.  Allnutt,  1  M.  &  S.  46. 
Foster  v.  Wilmer,  2  Str.  1249;  and  5  Henshaw  v.  Marine  Ins.  Co.,  2 
see  Thellusson  v.  Furgusson,  Doug.  Caines,  274. 

346,  per  Lord  Mansfield.  6  Marine    Ins.    Co.   v.   Tucker,   3 

2  Carter  r.  Royal  Exch.  Ass.  Co.,  Cranch,  357, 

2  Str.  1249.  7  Kingston  v.  Phelps,  Peake,  227. 

3  Kewley  r.  Ryan,  2  H.  Bl.  343. 


576  DEVIATION   AND   CHANGE    OF   RISK.  [CHAP.  XII. 

to  be  delivered  there,  under  a  policy  "  from  Boston  to  Charles- 
ton." 1 

The  doctrine  conclusively  established  in  the  cases  above  refer- 
red to  has  been  departed  from  in  a  few  instances.^ 

In  case  of  insurance  from  North  Carolina  to  Falmouth,  in  Eng- 
land, the  master  shipped  part  of  his  crew  and  cleared,  for  New 
York,  intending  there  to  ship  other  seamen  and  proceed  thence  to 
Falmouth,  and  a  loss  occurred  before  turning  off  from  the  course 
to  Falmouth,  it  was  held  in  New  York,  by  Lansing,  C.  J.,  and 
Kent  and  Lewis,  Justices,  to  be  a  different  voyage  from  the  one 
insured.^  I  cannot,  however,  but  think,  that,  on  the  authority  of 
the  cases  above  referred  to,  this  was,  at  the  time  of  the  loss,  a 
mere  unexecuted  intention  to  deviate. 


SECTION    VI.        DELAY    AFTER    THE    RISK    HAS    BEGUN,    EITHER    IN 
PORT    OR    ON    A    PASSAGE. 

1002.  Unusual  and  extraordinary  delay  in  the  prosecution  of  a 
voyage,  and  prolongation  of  its  period,  without  necessity  or  just 
cause,  after  the  risk  has  begun,  is  a  deviation^ 

The  mere  length  of  time  is  not  the  criterion.  The  necessity, 
and  motives,  and  all  the  circumstances,  are  to  be  considered. 
Lord  Ellenborough  says,  if  the  voyage  is  given  up  for  any  length 
of  time,  it  will  be  a  deviation,  but  there  must,  to  have  this  effect, 
be  a  clear  waste  of  time.^  And  Lord  Kenyon  says,  "if  there  is 
any  voluntary  delay,"  the  insurers  are  discharged.^  "  That  delay," 
says  Mr.  Justice  Story,  "which  is  necessary  to  accomplish  the  ob- 

1  Hobart  v.  Norton,  8  Pick.  159.  Stitt  y.  AVardell,  per  Lord  Kenyon,  2 
See  also,  in  confirmation  of  the  same  Esp.  GIO  ;  Wintlirop  v.  Union  Ins.  Co., 
doctrine  as  to  intention  to  deviate,  1     2  Wash.  C.  C.  R.  7. 

Johns.  Cas.  184  ;  2  Gaines's  Cas.  in  ^  Siha  v.  Low,  1  Johns.  Cases,  184. 

Error,  172;   2  Caines's  R.  274;    11  4  Syers  r.  Bridge,  Doug.  529. 

Johns.  261 ;  7  Mass.  R.  349 ;  3  Cranch,  5  Grant  v.  King,  4  Esp.  R.  1 75. 

384.     Sec  also  opinion  of  Lawrence,  6  Smith  v.  Surridge,  4  Esp.  25  ;  see 

J.,  in  Middlewood  v.  Blakcs,  7  T.  R.  same  doctrine,  per  Kent,  J.,  in  Suy- 

1C2,  cited  supra,  c.  7,  s.  6,  No.  582.  dam  v.  Marine  Ins.  Co.,  2  Johns.  138, 

2  Kewley  v.  Ryan,  2  II.  Bl.  343 ;  at  p.  143. 


SECT.  VI.]  DELAY   AFTER   THE   RISK   HAS    BEGUN.  577 

jects  of  the  voyage  according  to  the  course  of  the  trade,  if  bona 
fide,  cannot  be  admitted  to  avoid  the  insurance."  ^ 

In  all  cases  the  departure  from  the  usual  course,  or  delay,  must 
be  limited  to  the  purpose  whereby  it  is  justified.^ 

The  delay  is  one  of  the  elements  of  the  deviation  in  going  off 
the  track  of  the  voyage.  Where  the  risk  commences  "at"  the 
port  of  departure,  an  inexcusable  delay  to  proceed  after  the  risk 
has  commenced,^  instead  of  being  a  substitution  of  another  entire 
risk,  as  above,'*  will  be  a  deviation. 

In  case  of  a  policy  "at  and  from"  Bristol  to  London,  made 
January  28th,  on  a  vessel  which  was  then  in  complete  preparation 
for  the  passage,  but  did  not  sail  until  May  17th,  it  was  held  to  be 
a  deviation.^ 

Converting  the  vessel  into  a  "factory  ship"  or  floating  ware- 
house for  receiving  slaves  on  the  coast  of  Africa,  to  be  forwarded 
by  other  vessels,  was  held  to  be  a  deviation.^ 

So  where  a  ship,  insured  in  the  African  oil  trade,  with  liberty 
to  act  as  a  tender,  was  detained  as  such  in  Benin  River  thirteen 
months,  it  was  held  to  be  a  deviation^ 

So  it  is  a  deviation,  under  a  policy  on  a  trip  on  a  steamboat,  in 
river  navigation,  to  delay  for  the  purpose  of  towing  other  vessels, 
unless  this  is  authorized  by  usage  or  express  liberty.^ 

A  particular  period  being  expressly  allowed  for  delay  at  a  place, 
limits  the  right  of  voluntary  delay  to  that  period  ;  and  where  the 
policy  allowed  of  a  delay  of  two  months  at  Monte  Video,  waiting 
there  a  longer  time,  for  the  blockade  of  Buenos  Ayres  to  be  raised, 
was  held  to  be  a  deviation.^ 


1  Columbian  Ins.  Co.  v.  Catlett,  12  6  Hartley  v.  Buggin,  3  Doug.  39  ; 
Wheat.  283.  Tennant  v.  Henderson,  1  Dow,  324. 

2  Oliver  v.  Maryland  Ins.  Co.,  7  "^  Hamilton  v.  Shedden,  3  Mees.  & 
Cranch,  487.  W.  49  ;  1  Arnould,  Ins.  389. 

3  See  c.  1 1 ,  s.  1 ,  as  to  the  commence-  ^  Hermann  v.  Western  Fire  &  Mar. 
ment  of  the  risk.  Ins.  Co.,  15  La.  R.  517  ;  Natchez  Ins. 

4  No.  991.  Co.  V.  Stanton,  2  Smedes  &  Marsh. 

5  Palmer  v.  Marshall,  8  Bing.  79.  R.  340. 

See  also  Palmer  v.  Fenning,  9  id.  460 ;  9  Doyle  v.  Powell,  4  B.  &  Ad.  267 ; 

Earl  V.  Shaw,  1  Johns.  Cas.  313.  and  see  Marden  v.  South  Carolina  Ins. 
VOL.  I.                         49 


578  DEVIATION   AND    CHANGE    OF   RISK.  [CHAP.  XII. 

A  ship  insured  to  a  "  port  of  discharge,"  in  an  extensive  district 
or  country,  may  delay  a  reasonable  time  on  her  arriving  in  the 
countr}',  for  instructions  to  what  port  of  discharge  to  proceed  :  as 
in  case  of  insurance  to  a  port  of  discharge  in  the  United  States.^ 

A  ship  insured  at  and  from  Pillau  to  London  was  delayed  for 
the  purpose  of  making  repairs.  After  being  ready  for  sea.  she  was 
prevented  from  proceeding,  for  some  time,  by  the  lowness  of  water 
on  the  bar.  Lord  Kenyon  instructed  the  jury,  that  it  was  "not 
necessary  that  the  vessel  should  be  seaworthy  at  the  time  "  when 
the  risk  commenced,  from  which  he  inferred  that  a  sufficient  time 
might  be  taken  for  making  repairs.^ 

A  vessel  insured  in  England,  in  August,  having  been  purchased 
just  before,  then  lying  at  Brest,  in  France,  "at"  and  from  that 
place  to  London,  did  not  sail  until  the  following  March,  the  time 
being  consumed  in  procuring  an  American  crew  in  England,  and 
other  preparations  for  the  voyage.  Lord  Ellenborough  ruled,  that, 
if  the  voyage  had  been  given  up  for  any  length  of  time,  the  insur- 
ance would  be  defeated.  Evidence  being  given  that  the  voyage 
had  not  been  given  up,  and  that  the  delay  had  been  occasioned 
bv  the  difficulty  in  making  the  preparations,  the  jury  found  for  the 
assured  in  a  suit  for  a  loss,^  and  this  seems  to  have  been  the  final 
disposition  of  the  case. 

A  vessel  insured  from  London  to  Virginia  and  back,  was,  on 
arriving  in  Virginia  with  a  cargo  of  salt,  in  January,  1803,  pre- 
vented by  an  embargo  from  loading  with  lumber  to  return  until 
March,  1S09,  when  the  embargo  was  raised,  though  she  might 
have  returned  with  the  cargo  of  salt  in  the  mean  time.  The  delay 
being  for  the  purpose  of  prosecuting  the  voyage,  and  not  as  giving 
it  up,  it  was  held  by  Gibbs,  C.  J.,  and  his  associates,  not  to  dis- 
charge the  underwriters.^ 

A  cargo  of  flour  being  insured  "to  St.  Thomas  and  two  other 


Co.,  1  S.  Car.  Const.  It  200;  supra,  3  Grant   v.   King,  4  Esp.  R.  175. 

No.  862.  The  case  of  Chitty  v.  Selwyn,  2  Atk. 

1  King  V.  Middletown  Ins.  Co.,  1  3a9,  was  cited  for  the  defendants. 
Conn.  R.  184.  *  Schroder  r.  Thompson,  7  Taunt. 

2  Smith  V.  Surridgc,  4  Esp.  25.  4G2 ;  S.  C,  B.  Moore,  163. 


SECT.  VI.]  DELAY  AFTER  THE  RISK   HAS   BEGUN.  579 

West  India  ports,"  it  was  held  by  the  Supreme  Court  of  the 
United  States  that  a  delay  of  twenty-two  days  at  that  port  for  the 
purpose  of  disposing  of  the  cargo  was  not  a  deviation.^ 

Delay  for  turn  for  admission  into  the  Deptford  Docks  was  held 
not  to  be  a  deviation,  under  a  policy  "to  London."  ^ 

The  master's  staying  and  detaining  his  vessel  five  months  at 
Vera  Cruz  to  claim  his  cargo,  which  had  been  seized  by  the 
government  on  being  landed,  was  held  not  to  be  a  deviation.^ 

In  a  case  of  insurance  to  the  port  of  St.  Jago,  in  Cuba,  the  ves- 
sel on  arriving  there  was  not  admitted  to  entry,  though  not  refused 
absolutely,  and  the  master,  for  the  purpose  of  obtaining  permission 
to  enter,  delayed  there  twenty-three  days.  Mr.  Justice  Kent,  in 
giving  the  opinion  of  the  court,  said,  "The  delay  cannot  be  con- 
sidered as  amounting  to  a  deviation,  because  it  does  not  appear  to 
be  unreasonable  or  wilful,"  but  resulted  from  a  probable  expecta- 
tion of  permission  to  enter."* 

If  the  vessel  enters  a  port  to  dispose  of  the  cargo,  the  master 
may  stay  there  a  reasonable  time  for  this  purpose,  although  he 
meets  with  no  success.  A  vessel  put  into  Barracoa  for  this  pur- 
pose, and  remained  there  more  than  four  months,  during  which 
time  the  supercargo  made  unsuccessful  endeavors  to  effect  a  sale 
of  the  cargo.  Yet  the  court  said,  "They  could  not  intend  any 
unreasonable  delay  or  negligence  on  the  part  of  the  assured  ;  "  and 
held  it  not  to  be  a  deviation.^ 

Where  a  vessel  under  convoy  touched  at  Madeira  with  the  con- 
voy, and  delayed  in  discharging  cargo  there  so  long  as  to  be  sepa- 
rated from  convoy  for  the  rest  of  the  voyage,  it  was  ruled  by  Lord 
Ellenborou^h  to  be  a  deviation.^ 


1  Columbian  Ins.  Co.  v.  Catlett,  12  3  Stocker  v.  Harris,  3  Mass.  K.  409. 
Wheat.  383.  4  Suydam    v.   Marine   Ins.    Co.    2 

2  Samuel  v.  Royal  Excli.  Ass.  Co.,  Johns.  138. 

8  B.  &  C.  119;  and  see  Lapham  v.  &  Gilfert  v.  Hallet,  2  Johns.  Cas. 

Atlas  Ins.  Co.,  24  Pick.  R.  1,  supra,  296. 

No.  9G3  ;  and  EUery  v.  New  England  6  Williams  v.  Shee,  3  Camp.  469. 
Ins.  Co.,  8  id.  14,  supra,  No.  964. 


580  DEVIATION   AND    CHANGE   OP   RISK.  [CHAP.  XII. 


SECTION    VII.        USAGE    WILL    JUSTIFY    DEFLECTIONS    AND    DELAY 
OF    THE    VOYAGE. 

1003.  Usage,  as  we  have  seen,  is  the  test  of  what  belongs  to 
the  voyage,  and  the  proper  course  in  prosecuting  it.^ 

To  constitute  a  usage,  so  as  to  justify  touching  on  the  mere 
force  of  the  usage,  the  practice  must  have  been  sujjiciently  frequent 
to  authorize  a  presumption  of  notice  of  it.^ 

Two  instances,  though  not  in  a  very  much  frequented  trade,  are 
not  enough.^  This  is  supposing  the  exigencies  of  tlie  voyage  not 
to  require  that  the  vessel  should  touch. 

It  is  not  a  deviation  to  stop  at  places  where  it  is  the  usage  to 
stop  on  the  same  voyage,  passage,  or  trip,  for  the  purpose  of  land- 
ing or  taking  in  passengers  or  goods,  or  gaining  intelligence,  or 
procuring  provisions  and  supplies,  or  for  any  other  purpose  to 
which  the  usage  extends.  This  doctrine  is  particularly  applicable 
to  river  and  coasting  passages,  long  foreign  voyages,  and  those  for 
trading  or  fishing,  whether  the  contract  referred  to  is  a  policy  of 
insurance,'*  or  a  bill  of  lading.^ 

Under  the  general  description  of  an  East  India  voyage,  inter- 
mediate voyages  were,  formerly  at  least,  included,  in  pursuance  of 
the  practice  of  the  East  India  Company  to  employ  vessels  in  their 
service  upon  such  voyages. 

Under  a  policy  upon  goods  until  they  should  be  discharged  on 
the  coast  of  Labrador,  Lord  Mansfield  and  his  associates  held,  that 
delay  for  two  months  in  fishing,  before  discharging  the  goods,  was 
justified  by  usage. ^ 

In  a  case  before  Lord  El  don,  on  a  vessel  insured  from  New- 
foundland  to  Portugal,  where  the  vessel  went  to  Sidney  in  Nova 


1  Supra,  s.  1.     See  also  supra,  c.  1,  Samlf.  N.  Y.  City  Sup.  Ct.  R.  2G ; 
8.  13.  Lofkett   V.   Merchants'   Ins.  Co.,  10 

2  Bent<aloc  r.  Pratt,  Wallace's  R.  64.  Rob.  (La.)  R.  339. 

3  M.irtin    v.   Delaware   Ins.   Co.,  2  5  Lowry  v.  Russell,  8  Tick.  360. 
AVash.  C.  C.  R.  2rA.  C  Noble  v.  Kenoway,  Doug.  492. 

4  Child  V.   Sun  Mutual   Ins.  Co.,  3 


SECT.  VIII.]    LIBERTY   TO    TURN   FROM   THE   DIRECT   COURSE.        581 

Scotia,  for  a  cargo  of  coals,  he  ruled  that  such  subordinate  voyage, 
being  in  conformity  to  usage,  was  not  a  deviation.^ 

So  delay  for  the  purpose  of  fishing,  under  a  policy  at  and  from 
Newfoundland,  was  ruled  by  Lord  Ellenborough  to  be  justified  on 
the  ground  of  usage.^ 


SECTION    VIII.       LIBERTY    TO    TURN    FROM    THE    DIRECT    OR    USUAL 
COURSE,    OR   TO    DELAY,    OR    TO    VARY   FROM    THE    USUAL    RISKS. 

1004.  It  is  a  deviation  to  touch  at  a  port,  though  it  is  near  the 
course  of  the  voyage,  imless  so  doing  is  justified  by  usage,  or  neces- 
sity, or  express  liberty  : 

As  touching  at  the  island  of  Mauritius  in  a  voyage  from  India.^ 

It  is  a  deviation  to  go  off  the  course  of  the  voyage  for  papers, 
though  leave  is  given  in  the  policy  to  take  any  kind  of  papers.^ 

It  is  not  a  deviation  to  leave  the  course  for  the  necessary  pur- 
poses of  the  voyage,  such  as  obtaining  a  pilot.^ 

The  master  is  justified  in  departing  from  the  usual  course,  not 
only  for  the  purposes  of  the  most  speedy  and  advantageous  prose- 
cution of  the  voyage,  but  also  for  safety  of  life  and  property.^ 

Insurance  for  six  months  "between  New  Orleans  and  any  port 
in  the  United  States  or  Gulf  of  Mexico,"  was  held  in  Louisiana 
not  to  cover  a  passage  between  the  West  Indies  and  another  port 
in  the  United  States  than  New  Orleans."' 

1005.  The  construction  of  a  mere  liberty  to  touch  must  be 
governed  by  the  character  of  the  voyage  and  the  other  provisioiis 
of  the  policy  or  the  representations  of  the  purpose  by  the  assured, 
and  if  the  purpose  is  expressed,  the  construction  is  to  be  liberal  in 
reference  to  such  purpose. 

Sir  J.  Mansfield  says,  "It  is  doubtful,  nor  can  he  find  it  any 
where  defined,  what  is  the  precise  meaning  o(  liberty  to  touch,  as 

1  Ougier  v.  Jennings,  1  Campbell,  5  Puverin  v.  La.  State  Fire  &  Mar. 
505,  n.  Ins.  Co.,  4  Rob.  (La.)  R.  234. 

2  Vallance  v.  Dewar,  1  Camp.  503.  6  Turner  v.  Protection  Ins.  Co.,  25 

3  Winthrop   v.   Union   Ins.  Co.,  2  Maine,  R.  515. 

Wash.  C.  C.  R.  7.  7  Lippincourt  v.  Louisiana  Ins.  Co., 

4  Stocker  v.  Harris,  3  Mass.  R.  409.     2  La.  R.  399. 

49* 


582  DEVIATION   AND    CHANGE    OF   RISK.  [CIIAP.  XII. 

contradistinguished  from  liberty  to  touch  and  stay.  The  time  of 
staying  in  both  instances  is  perfectly  undefined  ;  and  no  case  de- 
cides how  long,  or  for  what  purposes,  a  ship  may  stay  under  these 
clauses."  ^  The  case  before  him  was  that  of  a  policy  on  a  voyage 
from  Madeira  to  Santos,  with  "liberty  to  touch  at  the  Cape  de 
Verde  Islands,"  and  the  additional  "  liberty  to  touch  and  stay  at 
any  ports  or  places  whatsoever."    The  ship  touched  at  Bonavista. 

Leave,  in  a  voyage  from  Antigua  to  England,  to  touch  at  all  or 
any  of  the  West  India  Islands,  "  including  Jamaica,"  allows  of 
going  out  of  the  course  of  that  voyage  to  St.  Kitts,  as  Jamaica,  to 
which  the  liberty  expressly  extended,  is  far  out  of  that  course.*^ 

Leave  to  stop  at  Matanzas,  to  inquire  if  there  were  any  men  of 
war  off  Havana,  was  construed  by  the  Supreme  Court  of  the 
United  States  to  permit  remaining  there  "so  long  as  the  danger 
continued."  ^ 

Under  a  policy  on  goods,  with  a  conditional  liberty  "  to  enter  a 
Dutch  port,  when  informed  on  arriving,  Sic,  that  it  might  be  done 
with  safety,"  the  captain,  being  informed  that  he  might  proceed 
to  Amsterdam  "without  molestation  from  the  British,"  attempted 
to  put  in  there,  and  was  captured  by  the  French.  This  attempt 
was  held  in  Pennsylvania  to  be  a  deviation,  because  the  captain 
did  not  bring  himself  within  the  condition.^ 

Under  liberty  to  join  convoy,  the  vessel  may,  if  necessary,  go 
out  of  the  usual  course  to  join  it ;  but  the  leave  in  this  form  being 
given  for  his  benefit,  he  may,  if  there  is  no  law  to  the  contrary, 
proceed  without  convoy.^ 

1  Urquliart  v.  Barnard,  1  Taunt,  would  require  a  very  strong  autlior- 
450.  ity  for  imputing  such  a  proposition  to 

2  Metcalfe  v.  Parry,  4  Camp.  123,  Lord  Mansfield,  and  a  still  greater 
per  Glbbs,  C.  J. ;  Urquliart  v.  Bar-  than  his  own  to  give  it  any  weight, 
nard,  1  Taunt.  450.  In  this  case  Sir  since  it  would,  as  Sir  J.  Mansfield  re- 
J.  Mansfield  refers  to  an  obiter  re-  marks,  annul  the  clause,  as  necessity 
mark,  erroneously,  as  he  intimates,  of  itself  authorizes  touching, 
attributed  to  Lord  Mansfield,  in  Grc-  3  Hughesi;.  Union  Ins.  Co.,  3  Wheat, 
gory  u. Christie, Park, 8  l.S.C,  3  Doug.  11.  159. 

419,  that  "liberty  to  toudi  and  stay,         4  Diicrhagan  v.  United  States  Ins. 

can  only  be  intended  to  give  pennis-     Co.,  2  Serg.  &  R.  309. 

sion  if  necessity  obliges  them."     It        ^  Heselton  r.  Allnutt,  1  M.  &  S.  4G. 


SECT.  Vlir.]    LIBERTY  TO   TURN   FROM  THE  DIRECT  COURSE.        583 

1006.  Leave  to  touch  at  a  pari  named  does  not  authorize  the 
substitution  of  another,  though  not  more  out  of  the  course.^ 

1007.  Ageneral  liberty  to  touch  at  a  jJort  or  at  ports,  without 
specifying  them,  will  justify  touching  only  for  the  purposes  of  the 
voyage? 

Abbott,  C.  J.,  and  his  associates  of  the  King's  Bench  in  Eng- 
land, decided  that,  under  leave  to  call,  in  a  policy  upon  the  ship, 
the  calling  to  learn  the  state  of  the  markets,  in  reference  to  another 
voyage,  was  a  deviation.^ 

A  vessel  insured  from  Hull  to  her  port  or  ports  of  lading  in  the 
Baltic,  "with  liberty  in  said  voyage  to  proceed  and  sail  to,  and 
touch  and  stay  at,  any  ports  whatsoever  and  wheresoever,  for  all 
purposes,  particularly  at  Elsinore,"  took  goods  to  be  delivered  at 
Elsinore,  Dantzic,  and  Pillau ;  the  last  being  the  intended  port  of 
lading.  She  was  lost  in  sight  of  Pillau,  after  having  delivered 
goods  at  Elsinore  and  Dantzic.  Abbott,  C.  J.:  "The  liberty  to 
touch  at  any  ports  for  all  purposes,  must  mean  for  purposes  con- 
nected with  the  voyage.  If  the  ship  had  gone  to  Elsinore  or 
Dantzic,  to  see  if  she  could  get  a  cargo,  that  would  have  been 
connected  with  the  voyage,  but  she  went  for  the  purpose  of  deli- 
vering goods,  which  was  wholly  unconnected  with  the  object  of 
the  voyage  insured."  ^ 

The  doctrine  of  this  case  is  no  doubt  correct,  but  its  application 
is  questionable.  It  is  not  said  that  the  ship  was  to  go  out  empty, 
and  that  the  homeward  freight  was  the  sole  object.  The  broad 
leave  to  touch  implies  the  contrary,  and  as  the  underwriters  were 
bound  to  take  notice  of  some  purpose  for  touching,  there  is  appa- 
rently no  reason  for  excluding  the  delivery  of  goods  from  being 


1  Elliot  V.  Wilson,  4   Bro.  P.  C.  should,  if  there  is  any  question,  ac- 

470.  cording  to   the   general   doctrine  in 

23  Kent's  Com.,  3d  ed.  315;  and  such  case,  be  construed  liberally  in 

see  cases  passim.     Chancellor  Kent  favor  of  the  assured, 

remarks,  that  liberty  to  go  out  of  the  3  Hammond  v.  Reid,  4  B.  &  A.  72 ; 

course  is  construed  strictly,  but  I  am  and  see  Langhorn  v.  Allnutt,  4  Taunt, 

not  aware  of  the  practical  application  511 ;  Rucker  v.  Allnutt,  15  East,  278 ; 

of  such  a  rule  in  jurisprudence.     The  and  cases  generally, 

words  being  those  of  the  underwriter,  *  Solly  v.  Whitmorc,  5  B.  &  A.  45. 


584  DE%^ATION  and  change  or  risk.        [chap.  xii. 

one.  It  was  apparently  the  most  probable  one  on  such  a  voy- 
age.' 

Goods  were  insured  from  London  to  a  port  of  discharge  in  the 
Straits  as  high  as  Messina,  with  power,  in  the  voyage,  to  stop  or 
stay  at  any  ports  or  places  whatsoever.  The  vessel  sailed  from 
London  with  lead  from  Marseilles,  and  put  into  Falmouth,  and 
staid  there  three  weeks,  taking  in  tin  for  the  same  port  of  destina- 
tion.    The  putting  into  Falmouth  was  held  to  be  a  deviation.- 

1003.  Liberty  to  touch  at  ports,  without  specifying  them,  will 
justify  going  off  the  direct  or  usual  course,  to  the  right  or  left,  but 
not  going  far  from  the  course,  or  in  an  opposite  direction,  espe- 
cially not  to  a  place  more  distant  than  the  specified  port  of  depart- 
ure is  from  the  specified  port  of  destination : 

As  going  southward  to  Faro  for  cargo,  under  a  policy  on  a  ship 
from  Lisbon  to  England.^ 

Insurance  being  "  from  L'Orient  to  Pondicherry,  ^Madras,  and 
China,  and  back  to  the  ship's  port  of  discharge  in  France,  with 
liberty  to  touch  at  I.  and  B.,  and  all  and  any  other  places  what 
and  wheresoever,  and  in  the  outward  and  homeward  bound  voy- 
age to  proceed  and  to  touch  and  stay  at  any  port  and  places  what- 
soever," Lord  Mansfield,  with  his  associates,  Willes,  Ashhurst, 
and  Buller,  were  of  opinion  that  the  liberty  was  limited,  by  the 
words  "  in  the  outward  and  homeward  voyage,"  to  places  lying  in 
the  usual  course  of  the  voyage,  between  the  specified  termini."* 

The  broadest  liberty,  including  that  of  sailing  "forwards  and 
backwards,  and  backwards  and  forwards,  in  a  voyage"  to  New 
South  Wales,  and  thence  "  to  all  ports  and  places  in  the  East  In- 
dies and  South  America,"  does  not  cover  an  independent  voyage 
from  New  South  Wales  to  New  Zealand,  not  justified  by  usage, 
and  wholly  unconnected  with  one  to  any  of  the  specified  ports  of 
destination.^ 


1  See  Metcalfe  v.  Parry,  4  Camp.  <  Lavabre  v.  Wilson,  and  the  Same 
123.  V.  Walter,  Doxig.  271. 

2  C!asonr.Simmonds,CT.R.533,n.  5  Bottomly  r.  Bovill,  5  B.  &  C.  210; 

3  Hogg  V.  Ilonicr,  raik,  444 ;  and  S.  C,  7  D.  &  11.  702. 
see  Rankin  r.  Reave,  2  I'ark,  7th  ed. 

415. 


1 


SECT.  VIII.]    LIBERTY   TO   TURN   FROM   THE   DIRECT   COURSE.        585 

1009.  Leave  to  sail  "backwards  and  forwards,''  or  to  touch 
"one  or  more  times,"  authorizes  intermediate  j^ossages,  this  being 
the  obvious  construction. 

The  insurance  being  "from  L'Orient  to  the  Isles  of  France  and 
Bourbon,  and  to  all  ports  and  places  in  the  East  Indies,  China, 
Persia,  or  elsewhere  during  the  ship's  stay,  and  trade  backwards 
and  forwards,  until  her  safe  arrival  back  to  her  port  of  discharge 
in  France,"  the  assured  represented  that  the  voyage  was  intended 
to  be  to  the  Isle  of  France,  Pondicherry,  and  China.  Lord  Mans- 
6eld  instructed  the  jury,  that  under  this  description  the  representa- 
tion did  not  preclude  the  assured  from  changing  his  mind  and 
going  from  Pondicherry  to  Bengal,  and  that  the  representation 
was  controlled  by  the  description  in  the  policy.  He  said  the 
representation  would  have  no  effect,  excepting  upon  the  ground  of 
fraud.  That  is,  if  it  v*'as  made  for  the  purpose  of  deceiving  the 
underwriters,  the  assured  having  no  intention  to  take  the  course 
represented,  it  would  defeat  the  policy .^ 

A  ship  and  cargo  were  insured  "  from  Boston  to  any  port  or 
ports  beyond  the  Cape  of  Good  Hope,  one  or  more  times  to  the 
same  port,  for  the  purpose  of  selling  the  outward  and  procuring  a 
return  cargo,  and  at  and  from  thence  to  port  of  final  discharge  in 
the  United  States."  The  ship  proceeded  to  Cochin  China,  and 
the  master,  finding  that  he  could  not  purchase  a  cargo  with  the 
gold  he  had  taken  thither  for  the  purpose,  made  a  voyage  to  JMa- 
nilla  to  exchange  it  for  silver,  and  returned  to  Cochin  China  and 
bought  about  one  eighth  of  a  cargo  of  sugar,  and  then  proceeded 
to  Batavia,  but,  not  being  able  to  complete  his  cargo  of  sugar  there 
on  satisfactory  terms,  sold  what  he  had  brought  thither,  in  order 
to  go  to  Samarang  to  procure  a  cargo,  not  being  permitted  to  take 
any  cargo  thither  from  Batavia.  Tlie  vessel  was  loaded  at  Saina- 
rang,  and  was  lost  on  her  voyage  to  Europe.  The  voyage  from 
Cochin  China  to  INIanilla  and  back  was  held  not  to  be  a  devia- 
tion.^ 


1  Bize  V.  Fletcher,  Doug.  271.  stated  infra  in  this  section,  Ashley  v. 

SThorndike  v.   Bordman,  4  Pick.     Pratt,  16  Mees.  &  W.  471;   S.  C.  in 

471,      See    also   an    important    case     error,  1  Exch.  R.  257,  in  which  insur- 


586  DEVIATION   AND    CHANGE   OF   RISK.  [CHAP.  XII. 

1010.  Where  the  voyage  insured  is  from  a  certain  port  to  sun- 
dry others  in  a  certain  district,  or  to  ports  particularly  specified  in 
their  geographical  order,  and  to  a  final  port  of  discharge,  or  one 
of  ulterior  destination,  with  leave  to  touch  at  certain  intermediate 
ports,  named  in  the  policy  in  their  geographical  order,  a  part  of 
the  risk  may  be  omitted  by  passing  any  of  the  ports,  but  as  many 
as  are  visited  j}iust  be  so  in  their  geographical  order,  or  in  an  order 
having  reference  to  progress  to  the  ulterior  destination,  unless  a 
different  order  is  justified  by  the  nature  of  the  voyage,  or  some 
provision  of  the  policy,  or  usage. 

Thus,  where  an  insurance  was  on  goods  from  Liverpool  to  Pa- 
lermo, Messina,  and  Naples,  and  the  vessel  cleared  and  sailed  for 
Naples,  and  was  captured  in  the  Bay  of  Biscay,  Lord  Ellen- 
borough  and  his  associates  held  that  this  was  not  sailing  on  a  dif- 
ferent  voyage,  and  that  a  voyage  to  those  three  places  meant  a 
voyage  to  either  of  them,  or  any  of  them  in  their  order. ^ 

Another  illustration  of  the  same  doctrine  is  the  insurance  on  a 
vessel  and  cargo  from  New  York  to  Antigua  and  Curagoa,  in  re- 
spect of  which  it  was  decided  in  New  York  that  sailing  directly  to 
the  latter  place  was  the  same  voyage,  and  not  a  deviation.^ 

Goods  being  insured  on  a  voyage  from  TiOndnn  to  "a  port  or 
ports  of  discharge  in  the  Straits,  with  power  in  the  voyage  to  stop 
and  stay  at  any  ports  or  places,"  the  vessel  took  goods  for  Mar- 
seilles. When  she  was  off  that  port,  the  wind  being  adverse,  she 
could  not  get  in  there,  but  was  driven  towards  Corsica,  and  there- 
upon went  to  Genoa  and  Leghorn,  and  returned  thence  for  Mar- 
seilles, and  was  captured  on  the  way  thither.  This  was  held  to 
be  a  deviation,^  because  the  ports  were  not  taken  in  the  proper 
order ;  or  rather,  it  was  held  that  the  risk  ended  in  such  case  at 
Leghorn,  the  most  distant  port  of  destination. 

ancefrom  Liverpool  to  ports  in  China  i  Marsden  v.  Rcitl,  3  East,  572. 

and  Manilla,  and  thence  to  the  United  2  Kane   v.   Columbian   Ins.  Co.,  2 

Kingdom,  is  held  to  authorize  going  Johns.  2G4.     See  also  Cross  v.  Shut- 

from  the  port  of  discharge  of  the  out-  lifle,  2  Bay,  220. 

■ward  cargo  in  Manilla,  to  Tongkoo,  in  ^  Clason    v.    Siramonds,   G   T.   R. 

China,  more  distant  from  tlic  United  533,  n. 

Kingdom,  for  a  homeward  cargo. 


SECT.  VIII.]    LIBERTY   TO    TURN   FROM   THE   DIRECT   COURSE.        587 

In  this  case  the  question  is  not  distinctly  made,  whether,  in  the 
situation  in  whicli  the  ship  was,  when  driven  towards  Corsica,  it 
was  the  most  expedient  course,  considering  the  circumstances  and 
the  objects  of  the  voyage,  to  proceed  to  Genoa  and  Leghorn  be- 
fore putting  into  Marseilles.  The  case  was  decided  by  the  jury 
very  much  upon  the  general  opinion  of  witnesses,  and  stress  was 
also  put  by  the  court  upon  a  representation  of  the  assured,  as  to 
the  intended  route  and  ports  of  destination  ;  so  that  it  seems  to 
have  very  little  weight  as  an  authority. 

So,  insurance  from  Boston  to  Terceira,  with  a  provision  for  an 
additional  premium  for  every  other  port  used  in  the  Western 
Islands,  being  considered  to  be  equivalent  to  a  policy  to  that  and 
other  ports,  a  like  decision  was  made  in  Massachusetts,  'm  case  of 
the  vessel's  omitting  Terceira  and  proceeding  to  Graciosa.^ 

A  Virginia  chancery  case  of  1810  puts  a  different  construction 
upon  a  similar  provision.  A  ship  and  cargo  were  insured  from 
Norfolk  to  Curagoa,  with  liberty  to  go  to  any  other  island  of  the 
West  Indies,  or  any  one  port  on  the  Spanish  Main,  and  "at  and 
from  thence  to  Norfolk."  The  captain  put  into  St.  Thomas, 
through  fear,  as  he  alleged,  of  being  captured  by  privateers,  and 
being  there,  sold  his  cargo  and  took  a  cargo  thence  to  Norfolk. 
The  case  was  an  ai)plication  to  the  court  for  an  injunction  on  the 
underwriters  not  to  proceed  at  law  on  the  premium  note.  The 
right  to  proceed  at  law  was  put  upon  the  ground  that  there  had 
been  a  deviation.  The  court  were  of  opinion  that,  if  the  captain 
had  put  into  St.  Thomas  voluntarily,  it  was  a  deviation.^  This 
construction  is  at  variance  with  the  preceding  cases.  ]t  was  only 
omitting  a  part  of  the  risk,  and  being  there,  he  might  omit  any 
other  intermediate  port  which  he  was  authorized  by  the  policy  to 
visit,  and  proceed  directly  to  a  subsequent  one,  or  to  Norfolk,  the 
ultimate  one.-^ 

An  insurance  being  to  a  certain  port  "  and  a  market,"  such  port 


1  Hale  r.  Mercantile  Ins.  Co.,  6  Pick.        3  Harrington  v.  Halkeld,  Park,  8th 
172.  ed.,  C39. 

2  Marine  Ins.  Co.  v.  Straas,  1  Mumf. 
R.  408. 


588  DEVIATION   AND    CHANGE    OF   RISK.  [CHAP.  XII. 

may  be  omitted.  Under  a  policy  "to  Kingston  and  a  market  in 
Jamaica,"  it  was  held  in  Massachusetts  not  to  be  a  deviation  to 
omit  Kingston  and  go  to  Port  Maria  in  that  island.^ 

1011.  The  rule  as  to  taking  ports  in  their  order  is  applicahle 
only  in  reference  to  some  ulterior  port  of  destination  already  fixed 
upon,  and  not  to  touching  for  instructions  to  determine  on  such 
ulterior  port. 

Accordingly,  under  a  policy  on  goods  "from  London  to  the 
ship's  discharging  port  or  ports  in  the  Baltic,  with  liberty  to  touch 
at  any  port  or  ports  for  orders  or  any  other  purpose,"  it  was  held 
by  Gibbs,  C.  J.,  and  his  associates  of  the  English  Court  of  Ex- 
chequer Chamber,  not  to  be  a  deviation  to  touch  at  Carlsham  for 
orders  as  to  the  port  of  discharge,  and  sail  thence,  by  direction  of 
the  assured's  agent,  back  to  Swinnemunde,  which  is  a  less  distance 
from  London,  to  ascertain  of  another  agent  the  port  of  discharge, 
and  then,  by  instruction  from  such  other  agent,  to  proceed  again 
to  Carlsham  for  a  like  purpose.- 

1012.  Whether  the  order  of  the  ports  as  stated  in  the  policy 
must  be  followed,  where  it  is  not  the  geographical  order  ? 

It  was  held  by  Lord  Kenyon  and  his  associates,  that  a  vessel 
insured  to  divers  ports  must  touch  in  their  order  in  the  policy, 
where  it  differs  from  the  geographical  order,  unless  a  usage  to  the 
contrary  is  proved.  It  was  an  insurance  "from  Gothenburg  to 
Leith  and  Mackenzie,"  the  two  latter  being  about  a  mile  asunder, 
and  the  vessel  touched  first  at  IMackenzie,  which  is  further  from 
Gothenburg,  and  sustained  damage  on  leaving  that  port  for  Leith.^ 

In  such  a  case  the  more  obvious  construction,  considering  the 
relative  position  of  the  ports  to  each  other  and  to  the  port  of 
departure,  seems  to  be,  that  the  order  is  indifferent,  and  that  the 
description  is  intended  merely  to  specify  the  limits  of  the  voyage, 
without  regard  to  the  order  of  putting  into  the  ports  of  destina- 
tion.^ 


1  Houston  D.  NuwEnj^land  Ins.  Co.,  ^  See  Ashley  v.  Pratt,  16  Mees.  & 
Pick.  8'J.  W.  4  71;  and  S.  C  in  error,  Pratt  v. 

2  Andrews  r.  IMellisli,  .0  Taunt.  idC.  Ashley,  1  Exch.  11.  257. 

3  IJeatson  v.  Ilaworth,  0  T.  U.  531. 


SECT.  VIII.]    LIBERTY   TO   TURN   FROM   THE   DIRECT   COURSE.        589 

There  are  regions  where  the  seasons  and  prevailing  winds  and 
currents  conclusively  determine  the  order  in  which  ports  are  to  be 
visited,  and  to  adopt  the  construction  that  the  order  in  the  policy 
or  the  geographical  order  is  to  be  observed,  would  be  simply  ab- 
surd.i 

1013.  Where  the  subsequent  and  ultimate  ports  of  destination 
are  specified,  and  the  intermediate  ones  comprehended  in  some 
general  description,  any  of  these  may  he  visited,  hut  they  must  he 
visited  in  an  order  having  reference  to  progress  toivards  the  speci- 
fied ulterior  ports,  unless  the  policy  provides  otherwise  by  allow- 
ing of  voyages  backwards  and  forwards. 

The  order  having  such  reference  is  not  necessarily  governed  by 
the  geographical  distance  from  the  port  of  departure,  or  that  of 
each  successive  port  from  the  preceding,  but  will  be  affected  by 
usage,  as  already  mentioned,^  and  also  by  the  prevailing  winds 
and  currents  of  the  region  in  different  seasons,  especially  in  the 
West  Indies  and  other  tropical  regions,  and  also  by  the  circum- 
stances and  incidents  of  the  particular  passage. 

Goods  being  insured  "at  and  from  Martinique  and  all  and  any 
of  the  West  India  Islands  to  London,  from  the  time  of  loading 
thereof,"  with  leave  "to  touch  and  stay  at  any  ports  whatever," 
the  vessel  sailed  from  Martinique  to  St.  Domingo,  which  was  much 
out  of  the  course  to  London.  It  was  objected  that  this  was  a  de- 
viation. Sir  James  Mansfield  said,  there  was  no  getting  over  the 
words  of  the  policy,  and  that  to  make  out  a  deviation,  instead  of 
"all,"  you  must  say  "some"  of  the  West  India  Islands.^ 

The  nature  and  objects  of  the  voyage,  as  specified  in  the  policy, 
may  justify  intermediate  voyages,  and  sailing  forwards  and  back- 
wards.^ 

1014.  Insurance  generally  "/o  a  market,^'  or  for  the  purpose 
of  obtaining  or  loading  a  cargo,  or  trading,  in  a  certain  region, 
authorizes  passages  hackivards  and  forwards  for  the  purposes  of 


1  See    Gairdner    v.    Senhouse,    3  3  Bragg  v.  Anderson,  4  Taunt.  229. 
Taunt.  16,  and  infra,  No.  1013.  4  See  Ashley  v.  Pratt,  IG  Mees.  & 

2  Supra,  No.  1012.  W.  471 ;  1  Exch.  R.  257,  cited  infra. 
VOL.  I.                               50 


590  DEVIATION   AND    CHANGE   OF   RISK.  [CHAP.  XII. 

the  voyage,  regard  being  had  to  the  'prevailing  winds  and  currents 
as  to  the  order  of  touching  at  ports,  and  such  a  policy  covers  the 
risk  to  the  same  port  more  than  once  : 

As  in  a  policy  upon  a  vessel  to  St.  Thomas  and  a  market  in 
the  West  Indies.^  The  ports  are  not  to  be  taken  in  such  order, 
in  respect  of  currents  and  winds  and  seasons,  as  to  prolong  the 
risk  superfluously  and  indefinitely. 

Goods  on  board  of  The  Good  Hope  were  insured  on  a  voyage 
"from  London  to  Trinidad,  or  any  ports  of  discharge  in  the  Spa- 
nish Main,  all  or  either,  with  leave  to  call  at  any  of  the  West 
India  Islands,  Jamaica,  and  St.  Domingo  excepted,  and  to  touch 
and  stay  at  any  ports  whatsoever,  for  convoy  or  trade."  The 
vessel  proceeded  to  Demerary,  and  thence,  after  two  days,  ran 
down  in  sight,  successively,  of  Tobago,  St.  Vincent's  and  St.  Lu- 
cia, and  touched  at  Martinique;  after  staying  four  days  there,  she 
shaped  her  course  for  St.  Thomas,  passing  by  St.  Kitts,  and  in 
the  night  struck  on  the  Anegada  Reef,  where  she  was  lost.  The 
underwriters  objected  to  a  claim  for  loss,  that  the  sailing  for  St. 
Thomas  was  not  the  proper  course  in  reference  to  the  ulterior  ports. 
Mansfield,  C.  J.,  and  the  other  judges  of  the  English  Common 
Pleas,  held  that  the  case  must  turn  upon  the  verdict  which  the 
jury  might  give  as  to  this  fact.-  It  seems  that  Martinique  was  the 
intended  destination,  and  if  so,  reference  was  to  be  had  to  that 
destination  in  deciding  the  question  of  deviation. 

It  was  held  by  Abbott,  C.  J.,  and  his  associates,  that,  under  an 
insurance  on  freight  at  and  from  the  island  of  Grenada,  in  the 
West  Indies,  to  London,  with  the  broadest  liberty  to  '-'touch  and 
stay,  and  load  and  unload,"  the  risk  attached  and  continued  while 
the  vessel  was  at  the  island,  visiting  place  after  place,  discharging 
her  outward  cargo,  in  preparation,  as  the  court  said,  for  taking  on 
board  her  homeward  cargo  ;  and  that  the  underwriters  were  an- 
swerable for  a  loss  of  the  homeward  freight,  by  the  loss  of  the  vessel 
before  any  part  of  the  homeward  cargo  had  been  taken  on  board. 
Tlie   decision  was   put   partly  upon    the   particular  trade  and  its 

1  Deblois  V.  Ocean  Ins.  Co.,lG  Pick.  2  Gairdner  v.  Senhouse,  3  Taunt. 
303.  IG. 


SECT.  VIII.]    LIBERTY   TO   TURN  FROM  THE  DIRECT   COURSE.        591 

usages.^  It  seems,  however,  to  admit  of  doubt,  whether  the  inte- 
rest in  this  insurable  subject  for  the  homeward  voyage  had  accrued 
at  the  time  of  the  loss.^ 

A  pohcy  being  on  a  ship  from  London  to  New  South  Wales, 
and  thence  to  ports  in  India,  China,  and  Persia,  and  to  her  port 
of  discharge  in  Great  Britain,  with  the  broadest  liberty  to  touch 
and  stay,  and  trade,  "at  all  places,  and  for  any  purpose,"  and  sail 
forwards  and  backwards,  the  ship  took  a  cargo  of  iron  at  Batavia, 
and  delivered  it  at  Sourabaya,  and  there  took  a  cargo  of  rice  to  be 
delivered  at  the  Mauritius,  it  being  intended  to  take  a  cargo  of 
cotton  thence  on  freight.  The  ship  having  been  damaged,  the 
claim  for  the  loss  was  objected  to  on  the  ground  of  deviation  ;  but 
Dallas,  C.  J.,  and  the  other  judges  of  the  English  Common  Pleas, 
decided  in  favor  of  the  claim.-' 

1015.  In  case  of  insurance  outward  to  any  and  any  number  of 
numerous  ports  within  extensive  limits,  and  thence  homeward,  with 
broad  liberty  to  touch  and  stay,  the  vessel  may,  from  the  character 
of  the  voyage  described,  have  the  liberty  of  an  intermediate  pas- 
sage, after  discharging  her  outward  cargo,  to  a  more  distant  port 
for  a  return  cargo. 

This  proposition  is  illustrated  by  an  ably  contested  case  of 
weighty  authority,  decided  in  the  English  Court  of  Exchequer, 
and  on  error  in  that  of  the  Exchequer  Chamber,  though,  on  the 
first  impression,  it  seems  to  require  a  very  nice  and  difBcult  dis- 
crimination to  distinguish  it  from  some  of  the  cases  above  referred 
to,  in  which  an  opposite  decision  was  given. 

It  is  on  a  policy  "at  and  from  Liverpool  to  ports  and  places  in 
China  and  Manilla,  all  or  any,  during  the  ship's  stay  there  for  any 
purposes,  and  thence  to  her  port  or  ports  of  calling  and  discharge 
in  the  United  Kingdom,  with  liberty  to  call  and  stay  at  all  or  any 
ports  or  places."  The  master,  after  discharging  the  outward  cargo 
at  Tongkoo,  in  China,  and  the  remainder  at  a  port  in  Manilla,  not 
finding  a  homeward  freight  at  the  latter,  took  on  board  230  chests 


J  Warre  v.  Miller,  4  B.  &  C.  538;        2  See  supra,  c.  3,  s.  11. 
S.  C,  7  D.  &  K.  1 ;  S.  C,  1  C.  &  P.        3  Armet  v.  Innes,  4  J.  B.  Moore, 
237.  "  150. 


592  DEVIATION   AND    CHANGE    OP   RISK.  [CHAP.  XII. 

of  tea,  being  about  one  tentb  of  a  cargo,  to  be  delivered  at  Tong- 
koo,  and  was  proceeding  back  thither,  in  an  opposite  direction  to 
the  course  to  the  United  Kingdom,  for  a  homeward  freight,  when 
the  vessel  was  wrecked  and  lost.  The  taking  of  the  tea  was  con- 
sidered by  the  court  to  be  incidental  merely,  and  the  case  was 
treated  as  if  she  had  gone  without  any  cargo. 

The  Court  of  Exchequer,  Pollock,  C.  B.,  giving  their  opinion, 
decided  that,  under  this  policy,  the  vessel,  after  delivering  her  out- 
ward cargo,  might  proceed  to  any  of  the  ports  within  the  specified 
limits  for  a  homeward  cargo. ^ 

In  the  Exchequer  Chamber,  in  error,  Denma-n,  C.  J.,  giving 
the  opinion  of  the  court,  said  :  "  The  words  *  China '  and  '  Manilla ' 
are  not  to  be  construed  as  showing  the  order  in  which  the  ship 
was  to  proceed,  but  must  be  taken  as  the  district  comprehending 
all  the  ports  and  places  from  which  the  vessel  might  take  her 
homeward  cargo."  - 

Considering  the  character  of  the  voyage,  as  described  in  the 
policy,  there  seems  in  this  case  to  be  a  fair  ground  for  the  insurers 
to  presume  that  the  vessel  might  have  to  revisit  a  port,  or  proceed 
to  one  more  distant,  for  her  homeward  cargo. 

1016.  Whether  liberty  to  touch  implies  that  of  delay  for  the 
purpose  oP  trading  and  discharging  and  taking  in  cargo,  or  any 
other  purpose  not  specified,  will  depend  upon  the  character  and  ob- 
jects of  the  voyage,  as  described  in  the  policy,  and  also  upon  usage. 

Liberty  to  touch  implies  that  of  discharging  and  taking  in  goods, 
unless  a  different  object  is  expressed  or  implied.*^ 

1017.  In  regard  to  what  constitutes  a  sufficient  necessity,  differ- 
ent persons  would  no  doubt  entertain  different  opinions  upon  the 
same  facts.  But  it  would  be  a  very  strict  and  illiberal  construc- 
tion to  hold  a  delay  or  departure  from  the  course,  when  it  is  ex- 
pedient and  necessary  in  the  master's  oj)inion,  to  be  a  deviation, 
because  others,  and  more  justly  too,  perhaps,  should  think  it  was 
unnecessary  and  inexpedient.  Great  weight  is  therefore  allowed 
to  the  fiir  and   honest  exercise  of  discretion  on  the  part  of  the 


»  Ashley  V.  Pratt,  IG  Mocs.  &  W.         2  Pratt  r.  Ashley,  1  Exch.  R.  257. 
471.  3  Metcalfe  v.  Parry,  4  Camp.  123. 


SECT.  IX.]        TURNING   OFF  AND   DELAY  FOR  REPAIRS.  593 

master,  in  cases  of  this  sort,  as  will  appear  from  the  whole  course 
of  jurisprudence  on  the  subject.^ 


SECTION    IX.       TURNING    OFF    AND    DELAY    FOR    REPAIRS    AND    TO 

REFIT. 

1018.  In  extraordinary  emergencies,  the  captain  may  go  out  of 
the  usual  or  stipulated  course,  or  delay  or  vary  from  the  usage : 

As  to  procure  men,  the  crew  having  become,  by  sickness  and 
death,  too  weak  to  proceed  on  the  voyage  with  safety .^ 

1019.  The  most  frequent  emergency  for  going  off  the  usual 
course  of  the  voyage  is  to  seek  a  port  of  necessity,  to  repair 
damages  and  to  refit.  When,  in  consequence  of  disaster,  the  ves- 
sel cannot  safely  pursue  the  voyage,  the  master  is  not  only  justi- 
fied in  quitting  the  course  and  seeking  the  most  convenient  and 
suitable  port  for  repairs  and  supplies,  or  on  account  of  other  exi- 
gencies of  the  voyage,  but  it  is  his  duty  to  seek  such  port.^ 

1020.  If  a  vessel  does  not  find  repairs  and  supplies  at  the  first 
'port  of  necessity,  it  may  proceed  to  a  second.'^ 

1021.  Such  superinduced  digression  must  be  prosecuted  with 
diligence  and  despatch,  and  the  main  voyage  must  be  resumed  as 
soon  as  may  be,  and  unnecessary  and  voluntary  delay  in  this 
respect  is  a  deviation. 

1022.  In  reference  to  such  deflections,  the  measures  taJcen  by  the 
master  in  good  faith  and  an  honest  exercise  of  discretion  used  within 
its  proper  limits,  though  not  the  most  judicious,  are  vindicated  in 
jurisprudence,  as  already  stated  in  reference  to  other  emergencies : 

As  in  case  of  the  master's  attempting  to  put  into  the  port  of 
Boston,  as  a  port  of  necessity,  on  a  voyage  from  Matanzas  to  St. 
Petersburg,  instead  of  steering  for  some  port  nearer  to  his  course.^ 

1  Stocker  v.  Harris,  3  Mass.  R.  409.     Atk.  545  ;  Pelly  v.  Koyal  Exch.  A?s. 

2  Cruder  v.  Philadelphia  Ins.  Co.,  2     Co.,  1  Burr.  341. 

Wash.  262;  same  Plff.  v.  Penn.  Ins.  ^  Hall  v.  Franklin  Ins.  Co.,  9  Pick. 

Co.,  id.  339  ;  Winthrop  v.  Union  Ins.  466. 

Co.,  2  Wash.  C.  C.  R.  7 ;  Woolf  v.  5  Turner  v.  Protection  Ins.  Co.,  25 

Claggett,  3  Esp.  257.  Maine  R.  515. 

3  Motteux  I'.  London  Ass.  Co.,  1 

50* 


594  DEVIATION   AND    CHANGE   OF   RISK.  [CHAP.  XH. 


SECTION    X.        TURNING    OFF    TO    AVOID    PERILS    INSURED    AGAINST, 
OR    NOT    INSURED    AGAINST. 

1023.  The  ship  may  go  out  of  its  course,  or  delay  to  avoid  dis- 
aster, no  less  than  to  refit  after  one  has  happened : 

As  to  avoid  capture  :  ^ 

Or  to  join  convoy,  though  not  warranted  or  represented  to  sail 
with  convoy  :  ~ 

Or  to  avoid  ice  :  ^ 

Or  to  gain  intelligence  at  an  intermediate  port,  in  case  of  the 
master  having  been  informed  on  the  voyage  that  trade  at  his  port 
of  destination  had  been  put  under  the  same  restrictions  as  if  it  were 
blockaded  :  * 

Or  leaving  a  port  with  the  vessel  in  an  unseawortby  condition, 
to  avoid  being  surprised  and  seized  there, ^ 

In  case  of  danger  of  the  ship  stranding  on  a  bar  in  going  out  of 
the  port  of  necessity,  it  is  not  an  unjustifiable  change  of  the  risk 
to  send  the  cargo  round  to  a  neighboring  port  to  be  taken  on  board 
there.  It  was  so  held  where  the  vessel  put  back  to  Bourdeaux, 
the  port  of  departure,  as  a  port  of  necessity.^ 

It  was  held  not  to  be  a  deviation  by  a  Danish  ship,  during  hos- 
tilities between  Denmark  and  Great  Britain,  to  be  put  by  the 
master  under  the  protection  of  an  American  frigate,  as  a  pretended 
prize,  for  the  purpose  of  avoiding  capture  by  British  cruisers,  the 
risks  insured  against  not  being  thereby  changed  or  enhanced,  but 
rather  diminished." 

A  diversion   from  the  prosecution  of  the  voyage  by  request  or 


1  Goyon  v.  Pleasants,  3  "Wash.  C.  C.  3  Graham  r.  Commercial  Ins.  Co., 
R.  241;  Oliver  v.  Maryland  Ins.  Co.,  11  Johns.  352. 

7  Cranch,  487  ;  Whitney  v.  Haven,  13  4  Lee  v.  Gray,  7  Mass.  R.  349. 

Mass.  172;  Reade  r.  Commercial  Ins.  5  O'Reilly  v.  Gonne,  4  Camp.  249. 

Co.,  3  Johns.  352;  Blackenhagen  v.  6  "Wjggin  r.  Amory,  13Mass.  R.  118. 

London  Ass.  Co.,  1  Camp.  454  ;  Mil-  "^  Governeur  v.  United  Ins.  Co.,  1 

ler  V.  Russell,  1  Bay's  R.  309.  Caines,  592  ;   though  the  captain  of 

2  Patrick  v.  Ludlow,  3  Johns.  Cas.  the  frigate  transcended  the  limits  of 
10.  his  duty  in  so  lending  his  protection. 


SECT.  X.]  TURNING   OFF  TO   AVOID   PERILS.  595 

order  of  the  commander  of  a  public  vessel,  not  accompanied  by 
any  threat,  and  without  any  fear  of  danger  in  case  of  non-compli- 
ance, is  a  deviation. 1 

1024.  Where  the  vessel  is  forced  from  the  course  by  a  peril  in- 
sured against,  it  is  undoubtedly  not  a  deviation : 

As  where  the  insurance  is  against  barratry,  among  other  risks, 
and  the  vessel  is  barratrously  taken  from  its  course.^ 

So  it  is  not  a  deviation  where  the  vessel  is  voluntarily  put  off 
the  course  in  consequence  of  damage  by  a  peril  insured  against,  as 
is  illustrated  fully  by  the  cases  above  referred  to  in  this  section, 
and  that  next  preceding. 

1025.  Going  off  the  course,  or  delay,  from  necessity  or  any 
cause  which  ivould  be  justifiable  wider  a  policy  against  the  perils 
of  the  sea  generally,  is  not  a  deviation  under  a  policy  against  one 
or  some  only  of  such  perils. 

It  cannot  but  be  known  to  the  parties  to  such  a  policy,  that  the 
vessel  is  to  be  subject  to  the  other  perils  usually  included  in  poli- 
cies, and  that  the  particular  risks  insured  against  are  subject  to  be 
affected  by  the  others  which  are  not  covered,  and  the  fair  infer- 
ence is,  that  they  do  not  contemplate  the  forfeiture  of  the  insurance 
by  the  risks  insured  against  being  thus  affected.  The  doctrine 
above  stated  is  accordingly,  notwithstanding  some  contrary  deci- 
sions, conclusively  established  : 

As  in  case  of  a  vessel  insured  only  against  sea-risks  and  fire 
being  detained  by  arrest,  and  then  sustaining  sea-damage :  ^ 

And  of  a  vessel  insured  against  capture  only  being  blown  to  the 
coast  of  France,  and  there  captured  :  "* 

And  of  a  like  policy,  and  the  vessel  being  exposed  to  capture 
by  her  slow  sailing  :° 

And  of  a  vessel  insured  except  against  seizure  for  illicit  trade 
going  off  the  course  to  avoid  such  seizure :  ^ 

1  Ruled    by    Lord    EUenborough,        '*  Green  i\  Elmslie,  Peake,  212. 
Phelps  V.  Auldjo,  2  Camp.  350.  5  Per  Lord  EUenborough,  12  East, 

2  Vallejo  V.  Wheeler,  Cowp.  143 ;     653. 

M'Intire  v.  Bowne,  1  Johns.  229.  6  Eiggen   v.   Patapsco  Ins.   Co.,   7 

3  Scott  i;.  Thompson,  4  B.  &  P.  181.    Harris  &  Johns.  279. 


596  DEVIATION  AND   CHANGE   OP  RISK.  [CHAP.  XII. 

And  of  a  vessel  insured  against  sea-risk  only  going  off  its  course 
to  avoid  a  violation  of  blockade.^ 

The  doctrine  thus  settled  is  not  shaken  in  the  least  by  the  few 
decisions  of  a  different  aspect.^ 

In  a  ruling  by  C.  J.  Gibbs,  just  referred  to,  he  makes  a  distinc- 
tion between  a  digression  on  account  of  a  peril  not  insured  against,^ 
and  one  on  account  of  a  peril  insured  against,^  from  which  Mr. 
Arnould  deduces  the  rule,  that  a  digression  to  avoid  an  excepted 
peril  is  a  deviation,  though  the  being  irresistibly  compelled  out  of 
the  course  by  the  operation  of  such  a  peril  is  not  so.^  But  as  I 
understand  the  report,  the  Chief  Justice  rests  his  different  rulings 
in  the  two  cases  referred  to  wholly  upon  the  distinction  that  the 
risk  is  excepted  in  one  case  and  not  so  in  the  other,  and  not  at  all 
upon  the  distinction  between  going  off  the  course  to  avoid,  and 
being  irresistibly  driven  off  by,  an  excepted  peril.  This  seems,  it 
is  true,  to  be  the  only  way  of  vindicating  the  ruling  against  the 
claim  for  loss  in  one  of  the  cases,  since,  without  this  distinction,  it 
is  palpably  inconsistent  with  a  conclusively  established  doctrine. 
I  cannot,  however,  deem  this  vindication  tenable,  since,  if  the 
underwriters  are  liable  to  be  affected  by  the  operation  of  the 
excepted  peril,  as  where,  under  insurance  against  sea-risks  only, 
those  are  liable  to  be  prolonged  and  aggravated  by  detention  and 
capture,  the  underwriters  are  as  directly  interested  in  avoiding 
these  perils  as  if  the  policy  had  included  them,  though  not  in  the 
same  degree.  Accordingly,  some  of  the  deliberate  adjudications 
above  stated  are  directly  opposed  to  such  a  distinction,  and  their 
authority  does  not  seem  to  be  shaken  by  a  hasty  ruling  at  Nisi 
Prius. 

But  if  the  voyage  is  given  up,  and  another  entirely  distinct  one 


1  Robinson   v.  Marine  Ins.  Co.  of  Rand's  note,  ibid.;  Roget  r.  Thurston, 
New  York,  2  Johns.  R.  89 ;  Lee  v.  2  Johns.  Cas.  248. 

Gray,  7  Mass.  R.  849 ;  Richardson  v.  3  O'Reilly  v.  Royal  Exch.  Ass.  Co., 

Maine  Fire  &  Mar.  Ins.  Co.,  6  id.  102.  ut  supra. 

2  O'Reilly  V.  Royal  Exch.  Ass.  Co.,  4  O'Reilly  v.  Gonne,  4  Camp.  247. 
4  Camp.  246,  per  Gibbs,  C.  J.;  Breed  5  i  Arnould  on  Mar.  Ins.  407. 

V.  Eaton,  10  Mass.  R.  22,  and  see 


SECT.  X.]  TURNING   OFF  TO    AVOID    PERILS.  59T 

undertaken,  on  account  of  a  peril  not  insured  against,  the  risk 
thereupon  ceases.^ 

1026.  If  the  vessel  meets  with  an  obstacle  independent  of  the 
perils  ordinarily  insured  against,  and  the  master,  not  from  neces- 
sity or  for  the  safety  of  the  lives  and  property  on  board,  under- 
taJces  a  new,  ivholly  distinct,  independent  adventure,  it  is  a  devia- 
tion, though  his  intention  may  be  thereby  to  accelerate  the  voyage. 

Where,  under  a  policy  upon  the  ship  and  freight  from  Boston 
to  Gibraltar,  and  thence  to  St.  Ubes  or  the  Cape  de  Verde  Islands, 
for  salt,  and  thence  back  to  Boston,  the  master,  on  arriving  at  one 
of  the  Cape  de  Verde  Islands,  found  so  many  waiting  there  for 
cargoes  that  his  turn  to  load  would  not  come  within  four  or  five 
weeks,  and  he  accepted  a  proposal  of  the  Governor  to  go  to  St. 
Jago  and  Fuego  for  a  cargo  of  provisions,  on  a  promise  of  being 
loaded  with  salt  for  home  so  soon  as  he  should  return,  his  going 
on  this  intermediate  voyage  was  held  in  Massachusetts  to  be  a 
deviation.^ 

The  case  was  one  for  the  jury  rather  than  for  the  court,  and 
the  opinion  is  accordingly  not  of  predominating  weight.  One 
reason  assigned  for  accepting  the  proposal  was,  the  vessel's  being 
short  of  provisions  for  the  delay  until  her  turn  came.  The  court 
remarked  that  she  ought  to  have  taken  a  sufficient  supply  at 
Gibraltar  for  such  a  delay.  The  ground  of  the  opinion  was,  that 
the  occasion  did  not  authorize  the  master  to  speculate  in  this  man- 
ner upon  the  possible  advantage  of  hastening  his  departure  by  thus 
going  out  of  the  regular  course  of  the  voyage. 

A  case  somewhat  similar  occurred  in  New  York,  in  which  a 
like  decision  was  made.  A  vessel  was  insured  for  a  voyage  from 
New  York  to  Teneriffe,  "  with  permission  to  proceed  from  Tene- 
riffe  to  the  Isle  of  IMay  and  Bonavista,  and  at  and  from  them,  or 
either  of  them,  to  New  York."  The  vessel,  on  arriving  at  Tene- 
riffe, was  required  to  perform  a  quarantine  of  forty  days,  because 
her  bill  of  health  had  not  been  certified  by  the  Spanish  consul  at 


1  Lee   V.   Gray,  7   Mass.  R.  349;        2  Kettcll   v.  Wiggin,  13   Mass.  R. 
Richardson  v.  Maine  Fire  &  Mar.  Ins.     68. 
Co.,  6  id.  102. 


598  DEVIATION   AND   CHANGE   OF   RISK.  [cHAP.  XH. 

New  York.  With  a  bill  of  health  so  certified,  she  would  have 
been  subjected  to  a  quarantine  of  only  eight  days.  The  second 
day  after  arrival  at  Teneriffe,  permission  was  given  to  land  the 
corn,  which  constituted  a  part  of  the  cargo,  which  was  prevented 
for  thirteen  days  after  by  the  state  of  the  weather,  and  then  the 
landing  of  the  cargo  there  was  prohibited  absolutely  on  account  of 
not  having  the  required  bill  of  health  ;  whereupon  the  master  pro- 
ceeded to  Madeira  and  discharged  his  cargo  there.  It  was  held 
that  this  passage  was  made  from  a  necessity  for  which  the  assured 
was  wholly  answerable,  whereby  the  insurers  were  not  liable  to  be 
affected,  and  accordingly,  that  it  was  a  deviation.^ 


SECTIOX   XI.       DELAY  FOR   THE    PURPOSE    OF    SUCCORING    THE    DIS- 
TRESSED,   OR    TO    SAVE    THE    PROPERTY    OF    OTHERS. 

1027.  Delay  or  going  out  of  the  course  to  succor  those  who  are 
in  distress,  has  been  invariably  held  not  to  be  a  deviation. 

This  justification  of  a  departure  from  the  usual  course  of  the 
risk,  though  always  mentioned  by  elementary  writers,  has  not  been 
often  recognized  by  courts,  for  the  reason  that  a  justification  re- 
sulting so  directly  from  the  plainest  principles  of  humanity,  and  in 
the  sufficiency  of  which  the  assured  and  insurers  are  in  general  so 
much  interested,  has  never  been  directly  called  in  question,  and 
the  justification  has  been  recognized  and  is  irrevocably  established 
in  jurisprudence.^ 

1028.  Delay  or  going  off  the  course  merely  to  save  the  property 
of  others,  is  considered  to  be  a  deviation.^ 


1  Robertson  r.  Columbian  Ins.  Co.,  Story,  J.;  Little  r.  St.  Louis  Perpe- 
8  Johns.  491.  tual  Mar.  &  Fire  Ins.  Co.,  7  ;Missouri 

2  See  Lawrence  v.  Sydebotham,  6  E.  379;  The  Beaver,  3  Chr.  Rob. 
East,  54 ;  per  Marshall,  C.  J.,  2  Cranch,  292 ;  The  Jane,  2  Hagg.  Ad.  R.  338. 
258,  n.;  Bond  v.  Brig  Cora,  2  Wash.  3  Bond  v.  Brig  Cora,  2  Wash.  C.  C. 
C.  C.  II.  80 ;  per  Story,  J.,  Schooner  R.  80 ;  ^lason  v.  Ship  Blaireau,  2 
Boston,  1  Sumner's  Rep.  328;  Ship  Cranch,  240;  Warder  i'.  Goods,  &c., 
Ilenrj-  Ewbank,  1  id.  400;  Foster  v.  1  Peters's  Ad.  R.  31. 

Gardiner,  Amcr.  Jurist,  No.  21,  per 


SECT.  XII.]  TAKIJra  LETTERS   OP  MARQUE.  599 


SECTION    XII.        TAKING    LETTERS    OF    MARQUE.       CRUISING.       CON- 
VOYING. 

1029.  The  taking  of  a  letter  of  marque,  without  leave  from 
the  underwriters,  is  not  of  itself  a  deviation. 

It  is,  at  most,  as  Mr.  Marshall  remarks,  a  temptation  to  deviate 
by  cruising.! 

After  a  decision  to  the  contrary  by  Lord  Kenyon  and  his  asso- 
ciates,^  the  law  has  been  definitely  settled  as  above. ^ 

1030.  A  letter  of  marque  can  be  used  only  for  defence  without 
leave  from  the  underwriters :  cruising  or  unnecessary  delay  of  the 
voyage  for  hostile  purposes  is  a  deviation.'^ 

It  was  a  matter  of  doubt  whether  a  vessel,  having  liberty  by 
the  policy  to  be  armed,  nothing  being  said  of  her  taking  a  letter  of 
marque,  but  having  taken  one,  was  authorized  by  usage  to  chase 
vessels  that  hove  in  sight,  or  had,  by  altering  her  course  about  a 
quarter  of  a  point  and  giving  chase  for  about  a  quarter  of  an  hour 
to  a  Spaniard  that  hove  in  sight,  forfeited  its  insurance.  A  special 
jury  found  it  to  be  a  deviation,  and  the  verdict  was  approved  by 
Lord  Ellenborough  and  his  associates;^  and  such  is  without  doubt 
the  established  doctrine. 

The  stopping  by  an  American  vessel  for  three  hours,  to  take 
possession  of  a  recaptured  vessel,  was  held  in  Massachusetts,  in 
the  strongly  contested  case  of  The  Volant,  to  be  a  deviation.  No 
time  was  taken  for  the  recapture.^  It  was  held  to  be  a  deviation, 
notwithstanding  the  knowledge,  on  the  part  of  the  underwriters, 
that  the  vessel  had  a  commission  as  a  privateer. 


1  Marsh.  Ins.,  book  1,  c.  7,  s.  6,  2(1  Jolly  v.  "Walker,  ibid.;  3  Kent's  Com., 
ed.  by  Condy,  282.    .  3d  ed.,  312,  &c. 

2  Dennison  v.  Modigliani,  5  T.  R.  ^  Parr  v.  Anderson,  6  East,  202; 
580;  and  see  his  remarks,  6  id.  382.  S.  C,  2  Smith,  316 ;  S.  C,  Park,  Ins. 

3  Moss  V.  Byron,  6  T.  R.  379  ;  Wig-  450. 

gin  I'.  Amory,  13  Mass.  R.  118 ;  Same  ^  Wiggin  v.  Amory,  13  Mass.  R. 
V.  Boardman,  14  id.  12;  Jarratt  i'.  118;  S.  C,  14  id.  1;  Wiggin  v.  Board- 
Walker,  1  Camp.  277.  man,  id.  12. 

4  Cook  V.  Townson,  Park,  Ins.  448  ; 


600  DEVIATION   AND    CHANGE   OF   RISK.  [CHAP.  XII. 

The  decisions  in  the  cases  last  cited  turn  upon  the  construction 
of  the  evidence  that  the  master  went  beyond  acts  of  mere  defence, 
from  motives  of  gain  by  the  recapture.  In  a  subsequent  trial  in 
the  same  court  between  a  shipper  and  a  ship-owner,  before  Par- 
ker, C.  J.,  the  evidence  in  defence  presented  a  new  phase  ;  namely, 
that  taking  possession  of  the  recaptured  vessel  was  also  a  defensive 
measure,  for  the  purpose  of  preventing  intelligence  of  the  course 
of  The  Volant  to  British  cruisers,  whereby  she  might  have  been 
exposed  to  capture,  so  that  an  opposite  verdict  was  given,  though 
the  doctrine  stated  by  the  court  was  the  same.^ 

In  a  trial  before  Mr.  Justice  Story,  on  a  policy  upon  goods  on 
board  of  the  same  vessel,  he  instructed  the  jury  that  the  question 
was  "whether  what  was  done  was  fairly  attributable  to  a  mere 
intention  of  self-defence  ;''  and  he  said,  "If  the  capture  was  made 
in  self-defence,  the  master  had  a  right  to  take  possession  of  his 
prize,  and  if,  without  injuriously  weakening  his  own  crew,  he  could 
man  the  prize,  he  had  a  right  so  to  do,  and  the  delay  for  that  pur- 
pose was  not  a  deviation."  ^  The  whole  question  is  one  of  the 
construction  of  facts  as  to  what  acts  are  merely  defensive. 

Lord  Eilenborough  and  his  associates  decided  that,  under  a 
policy  upon  a  ship  from  L.  to  the  coast  of  Africa  and  thence  to 
the  West  Indies,  with  letters  of  marque,  and  "leave  to  chase,  cap- 
ture, and  man  prizes,"  the  shortening  sail  and  lying  to  occasion- 
ally to  convoy  the  prizes  taken  was  a  deviation  ;  ^  but  it  is  not  so, 
if  the  vessel  does  not  delay  or  go  off  her  course  for  the  purpose.'* 

Lord  Mansfield  and  the  other  judges  of  his  court  considered 
leave  to  cruise  a  certain  number  of  weeks  to  mean  so  many  suc- 
cessive weeks,  and  held  cruising  at  different  periods  to  be  a  devia- 
tion.^ 

A  ship  being  insured  in  London,  "thence  to  the  southern  whale 
and  seal  fishery,  and  back,"  with  letters  of  marque,  and  leave  "to 
chase,  capture,  and  man,  return  with,  and  send  into  port  prizes, 

'  Gray  v.  Tliormlikc,  (MS.)   Sup.  3  Lawrence  r.  Sydebotham,  6  East, 

Ju<l.  Ct.,  Mass.,  Suflblk,   November,  54. 

1817.  "^  Ward  r.  Wood,  13  Mass.  R.  539. 

2  Ilavcn  V.  Holland,  2  Mason's  II.  ^  Syers  v.  Bridge,  Doug.  529. 
230. 


SECT.  XIV.]     CHANGES   OP  THE   RISKS   IN   FIRE  POLICIES.  601 

also  to  cruise  thirty-one  days  on  this  side  of  Cape  Horn,"  was 
held  by  Sir  James  Mansfield  and  the  other  judges  of  the  English 
Common  Pleas,  to  have  deviated  by  remaining  off  San  Bias,  in 
California,  for  nine  days,  waiting  for  an  enemy  vessel  to  come  out, 
being,  during  the  time,  on  fishing  ground,  though  not  tlie  best.^ 
The  delay  on  ground  not  the  best  for  fishing,  was  considered  by 
the  court  to  be  equivalent  to  cruising,  as  distinguished  from  chas- 
ing. 

Lord  Ellenborough  ruled  that,  on  a  voyage  similar  to  the  pre- 
ceding, leave  to  capture,  man,  and  see  into  port  prizes,  did  not 
authorize  delay  in  port  while  a  prize  was  under  repair.^ 


SECTION    XIII.        DEPARTURES    FROM    THE    ROUTE,    DELAYS,    AND 
CHANGES    OF    THE    RISK,    NOT    IMPUTABLE    TO    THE    ASSURED. 

1031.  We  have  seen  that,  in  respect  to  deviation,  the  acts  of 
the  master  and  other  representatives  of  the  assured  appointed  by 
him,  or  whose  appointment  is  authorized  by  him,  are  imputable  to 
him,  except  in  cases  of  barratry  where  that  is  one  of  the  risks  in- 
sured against. 

If,  in  consequence  of  disaster,  the  insured  subject  is  transferred 
to  the  hands  of  strangers,  their  acts  are  not  imputahle  to  the 
assured,  and  what  would  otherwise  be  a  deviation  will  cease  to  be 
such  : 

As  in  case  of  a  vessel  and  cargo  being  put  into  the  hands  of  the 
American  consul  at  the  Mauritius  in  consequence  of  the  death  of 
the  master  and  officers."' 

SECTION   XIV.       CHANGES    OF    THE    RISK    IN    FIRE    POLICIES. 

1032.  Fire  policies,  as  we  have  seen,^  usually  contain  provisions 
relative  to  alterations  of  the  buildings  insured,  or  other  enhance- 
ment or  change  of  the  risTi,  whereby  it  is  stipulated  that  the  policy 
shall  be  forfeited. 

1  Hibbert  v.  Haliday,  2  Taunt.  3  "Winthrop  v.  Union  Ins.  Co.,  2 
428.  Wash.  C.  C.  R.  7. 

2  Jarratt  v.  Ward,  1  Camp.  263.  4  Chap.  1,  s,  6. 

VOL.  I.  51 


602  DEVIATION   AND    CHANGE    OF   RISK.  [CHAP.  XII. 

Under  the  general  provision,  that,  "if,  after  the  insurance  is 
effected,  the  risk  of  the  property  shall  be  increased  by  any  means 
within  the  control  of  the  assured,  such  insurance  shall  be  void," 
the  Court  of  Appeals  of  New  York  held  that  the  erection  of  a  barn 
so  near  to  the  insured  building  as  to  enhance  the  risk,  would  incur 
a  forfeiture  of  the  insurance.^ 

1033.  In  fire  insurance,  as  well  as  marine,  the  assured  may  in- 
cur whatever  additional  risk  he  pleases,  without  prejudicing  his 
contract,  provided  a  loss  occasioned  by  the  additional  rislc  can  he 
distinguished  from  one  happening  independently  of  it.^ 

1034.  Requisite  repairs,  such  as  come  within  the  ordinary 
acts  of  ownership,  may  he  made  in  the  insured  huilding,  where 
there  is  no  express  provision  in  the  policy  requiring  the  consent 
of  the  insurers,  or  making  any  other  condition  07i  the  subject.^ 

1035.  If  any  change  made  in  the  subject  is  such  as  to  render 
it  a  different  one  from  that  described  in  the  policy,  the  under- 
writers ivill  be  ivholly  discharged  from  liability. 

1036.  So  if  any  such  alteration  of  the  subject  is  voluntarily 
made  by  the  assured  that  it  cannot  be  distinguished  whether  a 
loss  has  been  occasioned  thereby,  the  underwriters  are  not  liable 
for  such  loss^  What  is  the  effect  of  any  alteration  is  a  fact  for 
the  jury,"^  in  the  particular  case. 

1037.  An  alteration  whereby  the  character  of  the  building  is 
not  changed,  nor  the  risk  from  fre  increased,  does  not  discharge 
the  insurers  from  subsequent  liability.^ 

1038.  Under  a  policy  on  goods  in  a  certain  building,  the  en- 
hancement of  the  risk  by  the  manner  of  the  occupancy  in  other 
respects,  whereby  the  risk  of  fire  is  enhanced,  does  not  discharge 
the  underwriters  on  the  principle  of  deviation  or  change  of  risk 


1  Murdock  v.  Clienango  Mut.  Ins.  ^  Grant  v.  Howard  Ins.  Co.,  5  Hill, 
Co.,  2  Comst.  210.  10;  Merriam  v.  Middlesex  Mut.  Fire 

2  Stcbbins  v.  Globe  Ins.  Co.,  2  Hall's  Ins.  Co.,  21  Pick.  E.  162. 

R.  0.32.  c  Curry  i\  Commonwealth  Ins.  Co., 

3  Jolly  r.  Baltimore  Ins.  Co.,  1  Ilar-  10  ri(,'k.  53.5;   Jcflcrson  Ins.  Co.  v. 
ris  &  Gill,  294.  Cotheal,  7  Wend.  72. 

4  Stetson  V.  Mass.  Mut.  Fire  Ins.  Co., 
4  Mass.  K.  330. 


SECT.  XVI.]  WAIVER  OF  FORFEITURE  INCURRED  BY  DEVIATION.   G03 

merely,!  though  it  may  have  that  effect  on  the  ground  of  an  ex- 
press warranty,  or  an  impUed  representation  in  the  description  of 
the  subject  or  locus  in  quo,  in  the  policy. 

A  building  being  insured  as  a  "dwelling-house,"  its  being  occu- 
pied as  a  boarding-house,  was  held  not  to  discharge  the  under- 
writers.^ 

The  underwriters  were  held  not  to  be  discharged  by  the  cir- 
cumstance that  an  insured  building,  stated  to  be  occupied  as  a 
"private  residence,"  was  vacant  for  a  time.^ 

SECTION    XV.        CHANGES    OF    THE    RISK    IN    LIFE    POLICIES. 

1039.  The  doctrines  of  the  preceding  sections  respecting  an 
enhancement  or  change  of  the  risk,  have  no  application  to  life 
insurance  except  under  an  express  provision  in  the  policy. 

Such  provisions  are  usually  introduced  into  this  species  of  policy, 
and  are  considered  under  the  head  of  express  warranty.'^ 


SECTION    XVI.       WAIVER    OF    A    FORFEITURE    INCURRED    BY    DEVIA- 
TION. 

1040.  The  forfeiture  of  a  claim  under  a  policy  incurred  hy 
deviation  may  be  waived  in  ivriting,^  but  not  by  a  merely  verbal 
consent  to  waive  it  after  it  has  occurred.^ 

1041.  Mr.  Justice  Washington  expressed  the  opinion,  that  the 
forfeiture  was  cancelled  hy  the  fact  of  a  previous  deviation  being 
known  to  the  underwriters  at  the  time  of  subscribing  the  policy ,7 
and  the  doctrine  is  recommended  by  its  equitableness.  The 
strongest  ground  on  which  to  maintain  it  seems  to  be,  that  the 
underwriter  shall  not  be  permitted  to  allege  his  own  fraud  in  de- 

1  Lyon  V.  Commercial  Ins.  Co.,  2         4  Supra,  c.  9,  s.  11,  No.  801. 

Rob.  (La.)  R.  266.  5  Glidden    v.   Marine   Ins.    Co.,  1 

2  Eafferty  v.  New  Brunswick  Fire     Sumner,  R.  232. 

Ins.  Co.  (New  Jersey,)  3  Harrison's  ^  Crowningsliield  v.  New  York  Ins. 

R.  480.  Co.,  3  Johns.  Cas.  142. 

3  O'Neil  V.  Buffalo  Fire  Ins.  Co.,  3  ^  Coles  v.  Marine  Ins.  Co.,  3  Wash. 
Comst.  122.  C.  C.  R.  159. 


604  DE-VTiATION   AND    CHANGE    OF   RISK.  [CHAP.  XII. 

fence,  since  it  would  be  a  palpable  fraud  on  his  part  to  subscribe 
and  receive  the  premium,  intending  at  the  same  time  to  avoid  pay- 
ment of  a  loss  by  alleging  the  previous  deviation  or  one  repre- 
sented to  be  intended. 

In  a  case  above  cited,^  Gibbs,  C.  J.,  expressed  his  regret  on 
account  of  not  being,  as  he  thought,  authorized  to  exclude  the  de- 
fence of  a  deviation,  which  had  been  known  to  the  underwriter  at 
the  time  of  subscribing.  But  a  forfeiture  by  non-compliance  with 
a  warranty  implied  by  the  fact  of  making  the  policy,  and  not  by  its 
phraseology,  has  been  said  to  be  saved  by  a  representation,-  which 
is  an  analoo;ou3  case. 


1  Eedman  v.  Lowdon,  5  Taunt. 4G 2 ;         2  Supra,  c.  8,  s.  5,  Xo.  752. 
S.  C,  3  Marsh.  K.  136,  and  3.  Camp. 
503. 


CHAPTER    XIII. 


RISKS  COVERED. 


Sect.  1.  Of  the  risks  covered  generally. 

2.  Acts    of  the    assured    and    his 

agents. 

3.  Barratry. 

4.  The  insurers  are  not  liable  for 

ordinary  perils  and  losses. 

5.  Damage  arising  from  the  quali- 

ties of  the  subject. 

6.  Events  which  enhance  the  risk. 

7.  Loss  by  fii-e. 

8.  Perils  of  the  seas,  rivers,  lakes. 

9.  Piracy,  robbery,  theft. 

10.  Capture,  arrests,  restraints,  and 
detentions. 


Sect.  11.  Risks  from  prohibited  and  con- 
traband trade. 

12.  Other  perils.     General  clause. 

13.  Loss  from  fear  of  perils. 

14.  Of  remote   and    consequential 

losses.  Concurrence  of  dif- 
ferent perils.  Loss  upon  one 
subject  by  damage  to  an- 
other. 

15.  What    losses    are    within    the 

pei'iod  of  the  risk. 

16.  Risks  excepted. 

17.  Risks  in  bottomiy  interest. 


SECTION    I.       or    THE    RISKS    COVERED    GENERALLY. 

1042.  The  species  of  risks  most  usually  insured  against  in  ma- 
rine policies  are  perils  of  the  seas,  fire,  piracy,  and  theft,  bar- 
ratry, capture,  arrests,  and  detentions ;  and  to  this  specification 
is  commonly  added  the  general  clause  "all  other  perils,"^  which 
is  restricted  to  perils  like  in  kind  to  those  enumerated,  and  adds 
but  little  to  the  indemnity  secured  by  the  specific  enumeration. 

1043.  A  policy  will  7iot  secure  indemnity  in  favor  of  a  party 
who  cannot  be  legally  insured,^  or  on  any  subject  which  cannot 
be  legally  held,  or  on  a  trade  which  cannot  be  legally  prosecuted, 
or  against  risJcs  in  respect  to  which  indemnity  is  prohibited  by 
law,  or  in  direct  contravention  of  the  implication,  spirit,  and  policy 
of  the  laws.^ 

Lord  Chancellor  Lyndhurst,  in  the  case  of  Fontleroy,  laid  down 
the  doctrine,  that  an  insurance  in  favor  of  an  assured  and  his  re- 


1  See  supra,  No.  35.  2  ggg  supra,  c.  2,  s.  2. 

3  See  supra,  c.  3.  s.  2. 
51* 


606  BISKS   COVERED.  [CUAP.  XIII. 

presentatives,  on  his  life,  against  felonious  suicide,  is  void,  as  being 
in  contravention  of  the  policy  of  the  law ;  and  the  decision  in  the 
House  of  Lords  was  in  accordance  to  that  opinion.^ 

But  where  a  law  is  a  commercial  regulation,  wholly  collateral 
to  the  risks  insured  against,  a  non-compliance  with  which  does  not 
enhance  or  change  the  risks,  the  insurance  is  valid  notwithstanding 
such  non-compliance :  ^ 

As  in  case  of  a  law  regulating  pilotage  :  ^ 

And  of  one  requiring  a  shipping-paper  signed  by  the  master  and 
men :  ^ 

And  of  one  regulating  the  stowage  of  water  under  deck.^ 

So,  if  a  non-compliance  is  merely  incidental  and  collateral  to 
the  voyage  and  the  risks,  the  policy  remains  valid,  on  the  same 
principle  as  where  the  law  itself  is  merely  collateral.*^ 

1044.  The  rate  of  premium  paid  has  been  taken  into  conside- 
ration as  a  ground  of  presumption  as  to  the  extent  of  the  risks 
assumed.'^ 

1045.  The  commencement  and  termination  of  the  risk  are  the 
subjects  of  a  previous  chapter.  What  losses  by  the  perils  insured 
against  come  within  that  period,  will  be  the  subject  of  a  subse- 
quent section. 

There  are,  as  we  shall  see,  cases  in  which  the  action  of  the 
peril  is  not  fully  realized  until  after  the  policy  attaches,  though  its 
operation  began  previously  ;  and  vice  versa,  there  are  cases  where 
the  effects  of  a  peril  do  not  come  out  fully  until  after  the  period 
of  the  risk  has  ended.  Again,  there  are  cases  in  which  a  peril  not 
insured  against,  and  one  that  is  insured  against,  concur  in  their 
operation,  and  give  rise  to  the  question  to  which  of  the  two  the 

1  Amicable  Ins.  Co.  v.  BoUand,  2  law  proliiblting  trade  in  the  article, 
Dow  &  Clark,  1.  except  by  a  party  having  a  license,  is 

2  See  supra,  c.  3,  s.  2.  similar  in  principle.    Johnson  v.  Hud- 

3  Kcclcr  V.  Firemens'  Ins.  Co.,  3  son,  11  East,  180. 

Hill,  250;  Flanigan  v.  Washington  ^  Dcshon  u.  Merchants' Ins.  Co.,  11 
Ins.  Co.,  7  Tcnn.  11.  307.  Mctc.  199. 

4  Redmond   t'.   Smith,  7  Mann.  &         C  See  supra,  No.  221. 

Grang.  457.     The  judgment  in  favor         7  Maryland  &  Phoenix  Ins.  Co.  v. 
of  the  vendor  for  the  price  of  tobacco     Bathurst,  5  Gill  &  Johns.  159. 
sold  by  him  in  contravcntioa  of  the 


SECT.  I.]  OP  THE  RISKS   COVERED   GENERALLY.  GOT 

loss  is  to  be  attributed.  These  inquiries  are  postponed  until  we 
shall  have  investigated  the  several  enumerated  perils. 

Before  going  into  the  investigation  of  the  losses  by  the  several 
perils  usually  insured  against,  for  which  the  insurers  are  liable,  and 
as  preliminary  thereto,  we  will  consider  what  aggravation  of  the 
perils  and  causes  of  loss,  and  what  losses  by  those  perils  generally, 
are  at  the  risk  of  the  assured,  notwithstanding  the  insurance  ; 
namely,  acts  of  the  assured,  ordinary  action  of  the  enumerated 
perils,  wear  and  tear,  and  natural  decay.  We  will  also  first  con- 
sider the  aggravations  of  the  enumerated  perils  subsequent  to  the 
time  of  the  policy's  attaching,  which  are  at  the  risk  of  the  insurer. 

Barratry,  which  is  usually  an  induction  of  other  enumerated 
perils,  or  an  act  whereby  indemnity  under  the  policy  would  be 
forfeited,  if  this  risk  were  not  covered,  will  be  more  conveniently 
treated  of  in  connection  with  the  acts  of  the  assured  or  his  agents 
for  which  the  insurer  is  not  liable,  in  which  connection  it  is  accord- 
ingly put,  and  precedes  the  consideration  of  the  perils  through 
which  indiscriminately  this  risk  of  barratry  may  operate  on  the 
insured  subject. 

1045  a.  Policies  against  fire  on  land  usually  cover  that  risk 
only.i 

1045  b.  A  life  policy  is  an  insurance  against  death  indefi- 
nitely, or  for  a  certain  jperiod  of  time.  All  descriptions  of  risks 
and  perils,  that  is,  causes  of  death,  are  rarely,  if  ever,  insured 
against  in  these  policies. 

The  causes  of  death  insured  against  are  sometimes  enumerated. 
A  life  policy  against  "the  dangers  incident  to  navigation,  drown- 
ing, blowing  up,  &;c."  on  a  passage  upon  the  Mississippi,  is  held 
in  Missouri  to  cover  the  risk  of  drowning  by  accidentally  falling 
overboard,  though  the  occasion  was  not  extraordinary.^ 

A  life  policy  is,  however,  usually  in  form  an  insurance  against 
death  generally,  with  exceptions  of  death  by  certain  causes  or  un- 
der certain  circumstances."' 

1  See  supra,  No.  63,  and  infra,  No.  3  See  excepted  risks,  infra,  No. 
1094  to  1098,  also  No.  1062  a.  1162  b. 

2  Moore  v.  Perpetual  Ins.  Co.,  1 
Bennett's  R.  98. 


608  RISKS   COVERED.  [CIIAP.  XIH. 


SECTION    II.       ACTS    OF    THE    ASSURED    AND    HIS    AGENTS. 

1046.  The  underwriter  is  not  liable  to  indemnify  the  assured 
for  losses  by  the  perils  insured  against  directly  incurred  through 
the  fraud  or  gross  misconduct  of  the  assured. 

A  contract  for  indemnity  in  such  case  would  be  absurd,  and,  so 
far  as  it  related  to  a  voluntary  and  intended  loss,  void  at  law.^ 
But  where  a  loss  by  the  perils  insured  against  may  have  been 
remotely  occasioned  by  the  fault  or  negligence,  or  want  of  the 
greatest  degree  of  vigilance,  prudence,  and  forecast  of  the  assured 
acting  bona  fide  and  without  being  aware  of  such  consequence, 
there  are  not  wanting  authorities  establishing  the  liability  of  the 
underwriters  to  make  indemnity.  The  limit  of  such  liability  will 
be  found  not  to  be  very  definitely  marked.  It  undoubtedly  does 
not  extend  beyond  the  effects  of  the  bona  fide  acts  of  the  assured, 
if  it  extends  to  all  such  acts. 

The  underwriter  does  not  run  the  risk  of  the  obstructions  and 
embarrassments  directly  occasioned  by  the  debts  of  the  assured ;  ^ 
or  for  the  aggravation  of  a  loss  by  reason  of  his  neglect  to  supply 
the  master  with  funds  or  credit  to  a  reasonable  amount  at  a  foreign 
port :  ^  or  for  the  aggragation  of  a  loss  by  his  neglect  to  pay  sal- 
vage due  to  salvors  for  saving  wheat  in  case  of  disaster:'*  or  for 
a  constructive  total  loss  of  a  vessel,  which  would  have  been  only 
a  partial  one,  but  for  the  assured's  neglecting,  without  good  rea- 
son, to  make  repairs.^ 

1047.  The  underwriter  may  undoubtedly  malx'e  himself  liable  to 
indemnify  the  assured  against  the  fraud,  misconduct,  and  yiegli- 
gence  of  his  agents,  and  the  only  question  in  this  respect  is, 
whether  the  contract  is  so  framed  as  to  impose  upon  him  this 
responsibility.     By  the  common  form  of  the  policy,  the  master  of 

1  Amicable  Society  r.  BoUand,  2  Eq.  R.  (Press  of  Little,  Brown  &  Co.) 
Dow  &  Clark,  1.  4G1 ;  S.  C,  20  Eng.  Law  Jurist,  (x.  s.) 

2  La  Guidon,  c.  2,  a.  7.  Com.  PI.  257 ;  S.  C,  Eng.  Jurist,  1157. 

3  Amicable  Ins.  Co.  v.  Og'lcn,  20  5  Cincinnati  &  Firemens'  Ins.  Co. 
Wend.  287.  v.  May,  20  Ohio  R.  211. 

<  Rosetto  V.  Gurncy,  7  Eng.  Law  & 


SECT.  II.]        ACTS   OP  THE   ASSURED   AND   HIS   AGENTS.  G09 

the  vessel  and  the  mariners  are  the  only  agents  against  whose  mis- 
conduct the  assured  is  protected,  and  the  only  acts  of  the  master 
and  mariners  expressly  insured  against  are  those  which  amount  to 
barratry.  In  some  places  the  common  form  of  the  policy  makes 
a  distinction,  in  respect  to  this  risk,  between  an  insurance  on  the 
ship  or  freight,  and  one  upon  the  cargo  or  profits,  barratry  being 
insured  against  in  the  latter,  but  not  in  the  former  case.i 

1048.  The  doctrine  is  frequently  laid  down,  that  the  insurer  is 
not  answerable,  under  the  common  form  of  the  policy,  for  losses 
occasioned  through  the  fault  of  agents  employed  by  the  assured.^ 

The  course  of  jurisprudence  formerly  imposed  upon  the  assured 
a  very  broad  responsibility  for  the  acts  of  his  agents ;  and  it  was 
held  that  "  the  insurers  are  not  liable  for  losses  arising  from  the 
mistakes  of  the  owner  or  master;"*^  and  that  "the  act  of  the  mas- 
ter must  be  referred  to  his  principal  who  appoints  him,  and  when- 
ever a  loss  happens  through  the  master's  fault,  unless  that  fault 
amounts  to  barratry,  the  owner,  and  not  the  insurer,  must  bear 
it."  ^  But  this  seems  to  be  too  broad  an  exemption  of  the  insur- 
ers from  responsibility.  « 

"  Whether, ^^  says  Mr.  Justice  Story,  "  the  underwriters  are  lia- 
ble for  a  loss  by  any  of  the  perils  in  the  policy,  the  remote  cause 
of  lohich  is  the  negligence  and  misconduct  of  the  master  and  mari- 
ners, not  amounting  to  barratry,  is  a  vexed  question,  upon  which 
opposite  opinions  have  been  expressed  by  very  distinguished 
courts."  ^ 

1049.  The  better  and  now  established  doctrine  is,  that  the 
underwriters  are  liable  for  a  loss  occasioned  by  a  risJc  expressly 


1  Lafond's  Guide  to  Insurers  and  art,  1  Brevard's  (S.  Car.)  K.  209  j 
Assured.  Paris,  1837,  p.  97.  In  the  Howland  v.  Marine  Ins.  Co.  of  Alex- 
Antwerp  policies,  the  underwriters  andria,  2  Cranch,  C.  C.  R.  473;  Lod- 
insure  against  the  negligence  of  the  wicks  U.Kennedy,  5  Hammond,  (Ohio) 
master  and  crew.  R.  436,  which  is  a  case  of  damage  to 

2  1  Emerigon,  604,  c.  12,  s.  39.  goods  in  a  flat  boat  on  the  Mississippi. 

3  Goix  V.  Low,  1  Johns.  Cas.  341.  4  Vos  v.  United  Ins.  Co.,  2  Johns. 
See  also  Tatham  v.  Hodgson,  6  T.  R.  Cas.  187. 

656  ;  Stewart  v.  Tennessee  Ins.  Co.,  ^  Andrews  v.  Essex  Mar.  Ins.  Co., 

1  Humph.  242 ;  and  Himely  v.  Stew-  3  Mason,  6. 


610  RISKS    COVERED.  [CHAP.  XIII. 

insured  against,  though  it  is  a  consequence  of  the  negligence  or 
mistaJce  of  the  master  or  mariners;  supposing  the  ship  to  have 
been  provided  with  a  competent  master  and  crew,  and  that  there 
is  no  want  of  good  faith  and  honesty  of  purpose. 

Lord  Mansfield  instructed  the  jury,  "that,  if  they  were  satisfied 
the  captain  had  done  what  was  for  the  benefit  of  all  concerned," 
they  must  find  in  favor  of  the  claim  of  the  assured  ;  ^  meaning,  as 
Mr.  Chief  Justice  Dallas  of  the  English  Common  Pleas  explains 
the  ruling,  if  he  had  acted  with  a  view  to  the  common  benefit;^ 
or  in  other  words,  if  he  had  acted  in  good  faith,  and  not  fraud- 
ulently, the  underwriters  are  answerable  for  the  perils  insured 
against,  however  the  operation  of  those  perils  may  have  been 
affected  by  the  measures  taken  by  the  master.^ 
This  doctrine  has  been  illustrated  in  divers  cases : 
As  in  case  of  a  vessel  burnt  at  Gibraltar  in  consequence  of  the 
master's  carelessness  in  using  a  light  in  sealing  letters,  and  unne- 
cessarily discouraging  the  men  from  extinguishing  the  fire  through 
fear  of  the  explosion  of  gunpowder  :* 

And  of  a  Russian  ship  frozen  up  during  the  winter  in  Biorkoo 
Sound,  in  the  Gulf  of  Finland,  and  burnt  in  consequence  of  the 
master's  carelessly  leaving  a  fire  in  the  cabin  :  ^ 

And  loss  by  fire  on  board  of  a  steamboat  through  negligence :  ^ 
And  loss  on  board  of  a  steamboat  employed  in  river  navigation, 
in  consequence  of  an  explosion  occasioned  by  negligence  :  "^ 


1  2  Doug.  231.  die  carelessly  put  near  tlie  binnacle. 

2  Idle  r.  Royal  Exch.  Ass.  Co.,  3  Grim  r.  Phoenix  Ins.  Co.,  13  Johns. 
Moore,  115.  451.     See  Emerigon,  torn.  1,  p.  441, 

3  See  also  Amicable  Ins.  Co.  v.  Ins-  c.  12,  s.  18. 

ley,   7  Penn.  R.  223 ;  and  Shore  v.  5  Busk  v.  Royal  Exch.  Ass.  Co.,  2 

Bentall,  7  B.  &  C  798,  n.;  Bishop  r.  B.  &  Aid.  73. 

Pentland,  7  B.  &  C.  219;  Cincinnati  6  Waters  r.  Merchants'  Ins.  Co.  of 

&  Firemens'  Ins.  Co.  v.  May,  20  Ohio  Louisville,  1  M'Lean's  R.  275. 

R.  211.  "  Perrin's  Adm'rs  v.  Protection  Ins. 

4  Patapsco  Ins.  Co.  r.  Coulter,  3  Co.,  11  Ohio  R.  147,  overruling  prior 
Peters's  Sup.  Ct.  R.  222.  A  contrary  cases  of  Howell  v.  Cincinnati  Ins.  Co., 
decision  was  made  in  a  very  similar  7  Ohio  R.  276;  and  Fulton  v.  Lan- 
case  in  New  York,  of  a  vessel  laden  caster  Ins.  Co.,  id.,  part  2,  p.  5. 

with  gunpowder,  blown  up  by  a  can- 


SECT,  ir.]        ACTS    OF   THE   ASSURED   AND   HIS   AGENTS.  Gil 

And  the  stranding  of  a  ship  in  the  river  of  Sierra  Leone,  in  con- 
sequence of  injury  by  the  carelessness  or  unskilfulness  of  the  sail- 
ors and  some  natives,  such  as  were  usually  employed  on  like  ser- 
vice, in  putting  on  board  the  cargo  :  ^ 

And  the  master's  landing  and  selling  a  damaged  cargo,  and  so 
breaking  up  the  voyage,  acting  in  good  faith  and  according  to  the 
apparent  circumstances  :  ~ 

And  damage  to  tin  by  reason  of  improper  stowage  and  negli- 
gence :^ 

And  loss  of  goods  on  board  of  a  sloop  at  St.  Kitts,  on  the  way 
to  be  loaded  on  board  of  the  ship,  the  goods  being  lost  by  the 
wreck  of  the  sloop  through  the  carelessness  or  mismanagement  of 
the  mate  of  the  ship  and  the  men  having  charge  of  it : '' 

And  loss  by  the  plug  being  negligently  left  out  of  the  water- 
pipe  of  a  steamboat :  ^ 

And  loss  in  consequence  of  the  vessel  having,  after  the  risk  had 
commenced,  become  unseaworthy,  or  remained  so,  through  the 
negligence  or  mistake  of  the  master :  ^ 

And  loss  by  the  vessel  being  blown  over,  in  consequence  of  the 
master's  discharging  ballast : ''' 

And  loss  on  a  vessel  by  being  blown  over  through  v/ant  of  skill 
in  the  mechanics  employed  on  a  marine  railway  on  which  it  is 
hauled  up  for  repairs,  there  being  no  fault  or  negligence  of  the 
owner  or  master  in  employing  the  mechanics  :  ^ 

And  a  loss  in  consequence  of  a  pressgang  impressing  two  mari- 
ners sent  on  shore  to  make  fast  a  line  :  ^ 

And  a  loss  by  the  master's  contravening  a  penal  law  by  sailing 
without  convoy,  without  the  privity  of  the  owner:  '^^ 


^  Redman  I'.  Wilson,  14  Mees.&W.  6  See  cases  cited  supra,  No.  733; 

476.  Holdswortli  v.  Wise,  7  B.  &  Cr.  794, 

2  Jordan    v.  Warren    Ins.    Co.,  1  7  Sadler  v.  Dixon,  8  Mees.  &  W. 
Story's  R.  342.  895  ;  S.  C,  Dixon  v.  Sadler,  5  id.  414. 

3  Georgia  Ins.  &  Trust  Co.  v.  Daw-  ^  Ellery  v.  New  England  Mar.  Ins. 
son,  2  Gill's  K.  365.  Co.,  8  Pick.  14. 

4  Walker  v.  Maitland,  5  B.  &  Aid.  9  Hodgson  v.  Malcolm,  5  B.  &  P. 
171.  336.     Sir  J.  Mansfield,  C.  J.,  dissent- 

5  Dupeyre  v.  Western  Mar.  &  Fire  ing. 

Ins.  Co.,  2  Eob.  (La.)  E.  457.  lo  Carstairs  v.  AUnutt,  3  Camp.  497 ; 


612  RISKS    COVERED.  [CHAP.  XIH. 

And  occasion  given  for  the  loss  by  the  master's  persisting  in 
asserting  and  maintaining  the  rights  of  his  owners  and  a  national 
right  in  good  faith  on  reasonable  grounds,  against  threats  of  law- 
less violence  ;  as  where  the  master  persisted  in  the  seal-fishing 
business  near  the  Falkland  Islands,  notwithstanding  a  prohibition 
and  threats  of  violent  interposition  by  Vernet,  who  claimed  to  be 
governor  of  the  Islands  by  virtue  of  an  appointment  under  the 
government  of  Buenos  Ayres,  whose  jurisdiction  was  denied  by 
the  United  States.^ 

Such  are  the  results  of  the  jurisprudence  on  this  subject,  whereby 
the  doctrine,  though  for  a  time  negatived  and  in  suspense,  is  at 
length  definitively  established,  that,  where  there  is  no  express  sti- 
pulation to  the  contrary,  and  no  prior  forfeiture  of  the  policy,  the 
insurers  are  liable  for  loss  by  the  direct  operation  of  a  peril  insured 
against  upon  the  subject,  though  it  is  occasioned  through  the  mis- 
take, negligence,  or  carelessness  of  the  master,  acting  in  good  faith, 
or  of  the  crew,  where  a  competent  master  and  crew  were  provided 
in  the  outset.  This  is  so  where  the  master  and  crew  are  the  same 
that  were  originally  provided,  and,  for  a  still  stronger  reason,  where 
the  subject  has  been  transferred  to  the  care  of  strangers  in  conse- 
quence of  disasters. 

1050.  This  doctrine  is  limited  to  the  acts  and  neglects  of  the 
master  and  crew  as  such,  in  conducting  the  voyage,  or  in  charge 
of  the  subject.  It  intercepts  and  prevents  a  forfeiture  of  the  insur- 
ance by  reason  of  unseaworthiness  resulting  from,  or  continuing  by 
reason  of,  carelessness  or  mistake  of  the  master  or  crew,  hut  it 
docs  not  "prevent  a  forfeiture  by  deviation,'^  which  is  in  effect  a 
violation  of  an  express  stipulation  of  the  policy,  implied  by  the 
mere  description  of  the  voyage.     Nor  does  it  prevent  a  forfeiture 


Mctcalf  I".  Parry,  4  id.  123;  Cohen  v.  proceeding  to  his  port  of  destination 

Hinckley,  1  Taunt.  249  ;  Henderson  after  its  blockade  was  notified  to  him 

V.  Hiiuk',  id.  250,  n. ;  and  see  1  Ar-  by  a  belligerent  cruiser,  there  being 

nould's  Mar.  Ins.  719.  in  foct  no  blockade  legally  maiutaiued 

•  Williams   v.    Suffolk   Ins.  Co.,  3  at  the  time. 

Sumner's  R.  270;  S.  C,  13  Teters's  2  Xatchez  Ins.  Co.   v.  Stanton,  2 

Sup.  Ct.  11.  415.    See  also  the  case  of  Smedes   &  Marsh.  (Miss.)  R.   340; 

the  Ilcnriik  and  IMaria,  1  Chr.  Rob.  and    cases    on    deviation   generally, 

146,  where  the  master  persisted  in  c.  11. 


SECT.  II.]       ACTS   OF   THE  ASSURED   AND   HIS   AGENTS.  613 

hy  a  non-compliance  with  any  express  stipulation  by  an  act  or 
neglect  of  the  master  and  men  appointed  by  the  assured. 

1051.  The  insurers  are  not  answer ahle  for  loss  hy  acts  done 
in  had  faith,  and  in  contravention  of  law,  or  for  loss  by  malver- 
sation, or  gross  ignorance  and  recliessncss  in  discharge  of  his 
trust  on  the  part  of  the  master  or  other  agent  of  the  assured,  ex- 
cept where  loss  by  barratry  is  covered  : 

As  for  loss  by  condemnation  of  a  vessel  on  account  of  resistance 
against  search  legally  demanded,  or  attempt  of  rescue  by  the  crew, 
the  vessel  being  sent  in  by  belligerent  captors  for  examination;^ 
though  illegal  violence  may  be  legally  resisted  without  forfeiting 
the  insurance :  ^ 

Or  loss  by  the  ship  being  burnt  by  the  authorities  at  Marseilles, 
the  vessel  having  been  permitted  to  come  up  to  the  town  on  a 
false  bill  of  health,  whereby  the  plague  was  supposed  to  have  been 
spread  among  the  inhabitants  :  ^ 

Or  for  loss  by  condemnation  of  the  vessel  for  an  attempt  know- 
ingly to  violate  blockade  :  ^ 

Or  for  loss  by  damage  to  goods  by  a  leak  occasioned  by  a  water- 
pipe  being  burst,  in  consequence  of  water  being  carelessly  left  in 
it  and  frozen  :  ^ 

OX  for  detention  in  consequence  of  a  mistake  in  the  manifest, 
inducing  a  suspicion  of  smuggling :  ^ 

Or  for  loss  of  neutral  goods  condemned  in  consequence  of  belli- 
gerent goods  being  mixed  with  them  by  the  master,  in  the  invoice 
and  bills  of  lading,  as  neutral : ""  * 

Or  for  loss  of  a  vessel  injured  by  being  blown  over  in  being 


1  Robinson  v.  Jones,  8  Mass.  R.  536  ;  4  Harratt  v.  Wise,  9  B.  &  Cr.  712  ; 
and  see  9  Craneh,  R.  63;  and  Robin-  "Winder  v.  Wise,  1  D.  &  L.  240  ;  Nay- 
eon's  Col.  Mar.  12,  18,  163.  lor  v.  Taylor,  9  B.  &  Cr.  718. 

2  Williams  v.   Suffolk  Ins.  Co.,  3  5  Siordet  v.  Hall,  4  Bing.  607. 
Sumner's  R.  270;  S.  C,  13  Peters's  6  Bradford  v.  Levy,  2  C.  &  P.  137  ; 
Sup.  Ct.  R.  415 ;  The  St.  Juan  Bap-  S.  C,  Ryan  &  Moody,  331. 

tista,  5  Cbr.  Rob.  33.  7  Coffin  v.  Newbury  port  Ins.  Co.,  9 

3  Emerigon,  torn.  1,  p.  434,  c.  12,  ]Mass.  R.  436. 
s.  17. 

VOL.  J.  52 


614  EISKS    COVERED.  [CHAP.  XIII. 

hauled  up  on  a  marine  railway,  in  consequence  of  the  captain's 
naisdescribing  the  shape  of  the  vessel  to  the  superintendent :  ^ 
Or  for  loss  by  the  master's  leaving  his  register  on  shore :  ^ 
Or  for  loss  by  capture  consequent  on  the  master's  unnecessarily 
sailing  in  a  direction  off  his  course  90  degrees.^ 

The  insurer  may  expressly  assume  the  risk  of  such  fraud,  negli- 
gence, or  mismanagement,  as  he  in  fact  does  the  risk  of  fraud  by 
insuring  against  barratry.  Otherwise  he  is  not  responsible  for  loss 
thereby  occasioned  independent  of  the  perils  insured  against. 

1052.  The  liability  of  the  ship-owner  for  a  loss  on  the  cargo 
by  the  fault  of  the  master  and  crew,  does  not  necessarily  exone- 
rate the  underwriters^ 

This  is  plainly  illustrated  in  the  cases  above  cited,  and  the 
rule  sometimes  inadvertently  stated,  that  the  responsibility  of  the 
insurer  begins  where  that  of  the  ship-owner  ceases,^  is  plainly 
erroneous.  In  such  a  case,  where  the  assured  abandons  the  goods, 
he  is  bound,  as  we  shall  see,  to  assign  to  the  underwriters  his  claim 
against  the  ship-owner. 

1053.  If  the  damage  can  he  accounted  for  by  the  perils  of  the 
seas,  it  will  be  presumed  to  have  so  happened,  unless  it  is  proved 
to  have  been  caused  by  culpable  misconduct : 

As  where  the  vessel  was  damaged  by  taking  the  ground  in  the 
shallow  harbor  of  Newport,  in  England,  in  which  vessels  of  like 
draft  usually  took  the  ground  at  low  water  without  injury ;  it  ap- 
pearing that,  under  the  circumstances,  the  vessel's  bottom  might 
have  been  injured  without  any  fault  of  the  master  and  crew.^ 

1054.  Whatever  extent  is  to  be  given  to  the  responsibility  of 
the  assured  for  the  acts  of  his  agents,  the  doctrine  will  present  the 
questions,  who  are  such,  and  in  respect  to  what  acts  they  are  such  : 


1  Ellery  v.  New  England  Mar.  Ins.  also  Gregson  v.  Gilbert,  3  Douglas, 
Co.,  8  rick.  14.  232. 

2  Cleveland   r.   Union  Ins.  Co.,  8  4  CuUen  v.  Butler,  5  M.  &  S.  461. 
Mass.  11.  308.  5  Natchez   Ins.  Co.   v.   Stanton,  2 

3  rhyn  V.  Royal  Exch.  Ass.  Co.,  7  Smedcs  &  Marsh.  (Miss.)  R.  340,  and 
T.  11.  505  ;   otherwise,   if  he    fairly  in  divers  other  cases. 

chooses  the  less  direct  course.     Bra-  c  Potter  v.  Suflblk  Ins.  Co.,  2  Sum- 

zier  V.   Clap,  5  Mass.  Rep.  1.     See  ncr,  197. 


SECT.  II.]        ACTS   OF   THE  ASSURED   AND   HIS   AGENTS.  615 

and  it  is  a  general  rule,  that  a  principal  is  answerable  only  for 
those  acts  of  his  agent  which  are  done  in  pursuance  of  the  author- 
ity, and  in  the  exercise  of  the  discretion,  with  which  the  agent  is 
invested?- 

A  master  appointed  by  the  owner  of  a  chartered  vessel  is  the 
agent  of  the  owner.^ 

1055.  In  some  instances  the  same  person  acts  as  the  agent  of 
both  parties,  tvhich  gives  rise  to  the  question,  in  what  respects 
and  by  what  acts  he  represents  one  or  the  other. 

An  agent  of  a  life  insurance  company,  who  acted  for  the  com- 
pany in  his  neighborhood,  was  requested  by  the  person  proposing 
a  life,  to  do  what  was  necessary  in  effecting  the  policy.  The 
agent  did  not  refer  to  the  physician  required  by  the  rules  'and 
regulations  of  the  company;  and  the  question  was  made,  whether 
he  was  to  be  considered  the  agent  of  the  assured  or  of  the  under- 
writers. In  this  particular,  he  was  to  be  considered  the  agent  of 
the  assured.^ 

1056.  The  owner  of  a  ship  constitutes  the  master  and  mariners 
his  agents  for  the  navigation  of  the  ship,  and  thereby  renders 
himself  answerable  for  their  conduct  in  this  respect ;  but  if,  while 
they  are  engaged  in  this  employment,  they  commit  theft,  or  do  an 
act  of  violence  which  is  nowise  connected  with  this  employment, 
and  is  not  an  act  done  in  pursuance  and  as  a  part  of  such  employ- 
ment, this  does  not  concern  the  owner. 

This  distinction  is  recognized  in  many  instances ;  but  the  prin- 
ciples of  its  application  to  particular  cases  do  not  seem  to  have 
been  very  definitely  settled.  It  is  plain  that  the  master  is  an 
agent  of  the  owners,  both  of  the  ship  and  the  cargo,  to  more  pur- 
poses than  the  mariners  are  so.  Chief  Justice  Gibbs  has  also 
glanced  at  a  distinction,  in  this  respect,  between  the  owners  of 
the  ship  and  the  owners  of  the  cargo.  Speaking  of  a  loss  by  the 
misconduct  of  the  master  and  mariners,  he  says:  "It  is  extremely 
hard  that  the  owner  of  goods  should  be  responsible  for  a  loss  occa- 

1  See  infra,  c.  23,  s.  2  and  3.  3  Everett  v.  Desborough,  5  Bing. 

2  Pervis  v.  Tunno,  1  Brevard's  E.     503. 
261,  (1803.) 


616  RISKS    COVERED.  [CHAP.  XIII. 

sioned  by  an  act  In  which  he  did  not  concur,  and  by  which  he 
was  alone  the  sufferer."  ^  Sir  WilUam  Scott  notices  the  same  dis- 
tinction.2  g^t  upon  what  principles,  and  to  what  extent,  such  a 
distinction  is  to  be  made,  has  not  been  definitely  determined. 

The  owners  of  the  ship  are  the  agents  of  the  shipper  for  trans- 
porting the  goods,  for  which  purpose  they  employ  other  agents, 
namely,  the  master  and  mariners,  for  whose  conduct  in  this  em- 
ployment they  are  answerable  in  a  greater  or  less  degree  to  the 
shipper  ;  and,  as  before  remarked,^  the  liability  of  the  ship-owner 
to  the  shipper  does  not  negative  that  of  the  underwriters  on  the 
cargo,  though  it  is  occasionally  said  or  implied  by  judges  that  it 
does  so.^  In  the  cases  already  mentioned,  and  those  to  be  noticed 
under  barratry,  where  the  insurers  are  liable  for  loss  by  the  perils 
insured  against  through  the  negligence  or  misconduct  of  the  mas- 
ter, the  latter  is  responsible  in  damages  to  the  ship-owner,  and 
both  the  ship-owner  and  master  are  answerable  to  the  shipper, 
and  on  payment  of  the  loss  on  the  goods,  the  insurer  is  entitled  to 
an  equitable  assignment  of  the  claim  against  the  ship-owner  and 
master,  as  will  more  distinctly  appear  in  the  chapter  on  total  loss. 

1057.  Where  no  peril  expressly  insured  against  supervenes, 
the  insurers  are  not  liable  for  loss  or  damage  occasioned  by  the 
fraud,  negligence,  or  mismanagement  of  the  master  or  mariners, 
or  any  other  agent  of  the  assured  :  ^ 

As  in  case  of  blamable  neglect  of  the  master  to  transship  the 
cargo,  and  thereby  earn  freight,  after  his  vessel  has  been  wrecked  ;  ^ 
which  loss  is  incurred  only  where  the  sum  to  be  paid  would  be 
less  than  that  by  the  original  ship:*" 

1  Scares  v.  Thornton,  7  Taunt.  G27 ;  damage  of  this  description  only  to  the 
1  IMoorc,  373.  amount  of  the  value  of  the  ship  and 

2  The  Adonis,  5  Chr.  Rob.  256.  freight.     7  Geo.  II.  c.  17  ;  Abbott  on 

3  Supra,  No.  1052.  Shipp.  2G2.     The  law  in  this  respect 

4  Cleveland  v.  Union  Ins.  Co.,  8  is  the  same  in  Massachusetts.  Stat. 
Mass.  R.  308.  1818,  c.  122  ;  Revised  Statutes,  c.  32, 

5  Molloy ,  b.  2,  c.  2,  s.  4 ;  Abbott,  c.  5 ;  s.  1 . 

Jacobscn's  Sea  Laws,  95,  b.  2,  c.  1 ;  6  Schieficlin  v.  New  York  Ins.  Co., 

Tanner  t'.  IJcnnett,  Kyan  &  Moody,  9  Johns.  21;  Bradhurst  v.  Columbian 

182.     In   (jrcat   Britain    the   owners  Ins.  Co.,  id.  17. 

arc   answerable  to  the   «liipi)crs   for  7  Centre  v.  American  Ins.  Co.,  7 


SECT.  IL]        acts   op  THE  ASSURED   AND   HIS   AGENTS.  617 

Or  in  case  of  property  insured  as  neutral  not  being  claimed  as 
such  in  a  foreign  prize  court ; '  unless,  under  the  right  of  abandon- 
ment, the  master  or  other  person  having  charge  of  the  subject  is 
the  agent  of  the  insurers  and  not  of  the  assured  : 

Or  in  case  of  the  voyage  being  broken  up  and  the  goods  sold 
by  the  consignee  on  the  ship  being  stranded,  instead  of  being  for- 
warded in  lighters  or  by  the  same  ship  after  it  was  got  afloat.^ 

No  peril  expressly  insured  against  supervenes  after  such  mistake 
or  negligence  of  the  consignee  of  the  cargo,  to  whom,  under  such 
circumstances,  less,  rather  than  greater,  indulgence  is  shown  than 
to  the  master.^ 

1058.  The  underwriters  are  liable  for  losses  by  the  perils  oj 
the  sea,  occasioned  by  the  negligence  or  mistakes  of  a  duly  com- 
missioned public  pilot,  or  those  of  mechanics  and  laborers  pro- 
perly in  charge  of  the  vessel. 

On  this  subject  the  following  decision  was  given  in  the  Court  of 
King's  Bench.  A  ship  entered  the  port  of  Liverpool  in  charge  of 
a  pilot,  who,  in  the  absence  of  the  master  on  business  of  the  ship, 
and  against  the  advice  of  the  master,  took  her  up  to  the  pier  of 
the  dock  basin,  and  fastened  her  there  by  a  rope  to  the  shore,  in- 
tending that  she  should  take  the  ground  when  the  tide  fell,  which 
she  did,  and  falling  over  on  her  side  was  bilged.  In  a  suit  on  the 
policy  upon  the  cargo,  for  damage  occasioned  by  the  bilging.  Lord 
Ellenborough  said :  "The  question  is,  whether  what  has  happened 
is  to  be  considered  as  having  happened  through  the  misconduct  of 
the  master  and  mariners,  from  which  the  underwriter  is  exempted. 
Now  to  make  the  pilot  the  representative  of  the  master,  and  con- 
sequently to  exempt  the  underwriter  from  liability  for  his  acts,  it 
must  be  shown  that  there  is  a  privity  between  the  master  and  the 
pilot,  so  that  one  may  be  considered  as  the  representative  or  agent 
of  the  other.  But  does  the  master  appoint  the  pilot  ?  Certainly 
not.     The  regulations  of  the  pilot  act  impose  a  penalty  upon  the 

CoTven,  5G4;   American  Ins.  Co.  v.  len   v.   Delaware  Ins.  Co.,  4  Binn. 

Centre,  4  Wend.  45.  444. 

1  Vanderheuvel  v.  United  Ins.  Co.,        ^  Ludlow  v.  Columbian  Ins.  Co.,  1 

2  Johns.  Cas.  127;   Gardei'e  v.  Co-  Johns.  335. 
lumbian  Ins.  Co.,  7  id.  514 ;   Boh-        8  See  infra,  No.  1059. 

52* 


618  RISKS   COVERED.  [CHAP.  XIII. 

master  of  every  ship,  which  shall  be  piloted  by  any  other  person 
than  a  pilot  duly  licensed,  within  certain  limits,  for  which  pilots 
are  appointed.  Is  it  just  that  the  master  should  be  answerable  for 
the  misconduct  of  a  person  whose  appointment  the  provisions  of 
the  law  have  taken  out  of  his  hands  ?  There  is  no  privity  between 
them.     It  appears  to  me  that  the  underwriter  is  liable.^ 

So  the  underwriters  were  held,  in  Missouri,  liable  for  the  loss 
of  a  steamboat,  which  was  burnt  when  in  dock  for  repairs,  by  the 
negliojence  of  the  workmen.^ 

1059.  The  consignees  of  the  cargo  represent  the  assured  on 
that  subject  more  fully  than  the  master  of  the  vessel  does,  merely 
as  such. 

It  was  ruled  by  Abbott,  C.  J.,  afterwards  Lord  Tenterden,  that, 
where  the  agent  of  the  owner  of  a  vessel  that  had  been  stranded 
at  the  island  of  St.  Thomas,  in  the  West  Indies,  neglected  to  have 
it  hove  down,  and  examined,  and  a  total  loss  ensued  which  might 
have  been  avoided,  the  insurers  were  not  liable."^ 

Goods  beins  insured  from  New  York  to  Newbern,  in  North 
Carolina,  the  vessel  was  driven  ashore  at  Ocracoke  Point,  about 
eight  miles  from  Newbern,  where  the  consignees  ordered  the  goods 
to  be  sold,  instead  of  having  them  carried  forward,  as  they  might 
have  been,  to  Newbern,  in  the  ship,  after  she  was  got  afloat,  or  in 
lighters.  The  voyage  was  thus  broken  up,  and  the  goods  sold  at 
a  great  loss ;  but  the  court  was  of  opinion,  that  the  assured  had 
no  claim  upon  the  underwriters,  there  being  no  evidence  of  any 
actual  damage  to  the  goods  in  consequence  of  the  vessel's  running 
aground.^ 

A  shipment  of  arms  and  ammunition  being  made  at  London  for 
Madeira,  in  1829,  the  consignee  gave  the  governor  of  the  island 
notice  that  such  an  importation  was  expected,  under  the  impres- 
sion that,  unless  such  notice  should  be  given,  the  articles  might 
be  seized  and  confiscated  as  having  been  shipped  in  pursuance  of 


1  Carrutbers  v.  Sydebotbam,  4  !M.  3  Tannery.  Bennett,  Ryan  &  Moody, 
&  S.  77.  182. 

2  St.  Louis  Ins.  Co.  v.  Glasgow,  8  ^  Ludlow  v.  Columbian  Ins.  Co.,  1 
Missouri  R.  713.  Jobns.  335. 


SECT.  II.]        ACTS   OP  THE   ASSURED   AND   HIS   AGENTS.  619 

some  revolutionary  project,  and  that  he  himself  might  be  impri- 
soned as  having  a  concern  in  the  importation.  He  expected,  also, 
by  this  step,  to  obtain  a  restoration  of  the  articles  if  they  should 
be  seized.  The  articles  were  included  in  the  manifest  and  were 
not  intended  to  be  introduced  clandestinely.  They  were  seized 
before  they  had  been  landed.  The  insurers  objected  to  the  loss, 
on  the  ground  that,  but  for  the  previous  notice  given  by  the  con- 
signee, the  articles  would  not  have  been  seized  until  after  having 
been  landed,  in  which  case  they  should  not  have  been  liable  for 
the  loss.  Lord  Tenterden  and  his  associates  held  that  the  insurers 
were  liable.^ 

Goods  consigned  to  Bremen  were  accepted  by  the  consignees 
short  of  the  port  of  destination,  which  occasioned  the  additional 
expense  of  lighters  to  transport  them  thither.  Mr.  Justice  Yeates 
said:  "These  expenses  must  be  ascribed  to  the  agents  of  the 
assured,  against  whose  acts  there  was  no  stipulated  indemnity;" 
and  this  was  the  opinion  of  the  court.^ 

1060.  We  have  seen  that,  with  the  exception  of  unlawful  trade, 
parties  may  agree  for  indemnity  against  the  acts  of  the  govern- 
ment of  the  country  to  which  the  assured,  or  both  the  assured 
and  insurers,  belong  j^  whence  it  follows,  that  the  functionaries  of 
the  assured^  own  government  are  not  his  agents  to  the  effect  of 
rendering  him  responsible  for  their  authorized  acts  in  exoneration 
of  his  underwriters. 

Judicial  functionaries  are  not  excepted  from  this  rule.'* 
Accordingly,  it  is  not  true,  as  has  been  sometimes  alleged,^  that 
every  citizen  is  presumed  to  assent  to  the  acts  of  his  own  govern- 
ment. 

1061.  The  insurers  are  held,  both  in  England  and  the  United 
States,  to  be  liahle  for  loss  by  fire  occasioned  by  negligence.^ 

1  Wilbraliam  v.  Wartnaby,  Lloyd  5  flornby  v.  Houlditch,  1  T.R.  93,  n. 
&  W.  144.  6  See  cases  supra,  No.  1049;  also 

2  Low  V.  Davy,  5  Binn.  595.  infra,  s.  7,  contra,  Grim  v.  Plicenix 

3  Supra,  c.  10,  No.  913,  914,  916.  Ins.  Co.,  13  Johns.  451,  outweighed 

4  Francis  v.  Ocean  Ins.  Co.,  6  Co-  by  other  cases,  3  Kent's  Com.,  3d  ed. 
wen,  404 ;  Ocean  Ins.  Co.  v.  Francis,  304,  n.  a. 

2  Wend.  G4. 


620 


RISKS   COVERED. 


[chap.  xnr. 


SECTION    III.      BARRATRY. 

1062.  Marine  policies  usually  cover  the  risk  of  barratry;  which 
is  an  unlawful,  fraudulent,  or  dishonest  act  of  the  master,  mari- 
ners, or  other  carriers,  or  of  gross  misconduct,  or  very  gross  and 
culpahle  negligence,  contrary,  in  either  case,  to  their  duty  to  the 
owner,  and  that  might  he  prejudicial  to  him  or  to  others  interested 
in  the  voyage  or  adventure.^ 

1063.  Accordingly,  a  mere  mistake,  without  dishonesty  or  a 
violation  of  duly,  is  not  barratry : 


1  Mr.  Justice  TVilles  defines  barra- 
try to  be  "  every  species  of  fraud  or 
knavery  in  the  master,  by  ■wbicli  the 
freighters  or  owners  are  injured." 
Lockyer  v.  Offley,  1  T.  R.  252.  And 
Lord  Hardwicke  defines  it  to  be  "an 
act  of  -wrong  done  by  the  master 
against  the  ship  and  goods."  Lewen 
V.  Suasso,  Postleth.  Diet.,  art.  Assur- 
ance. Mr.  Justice  Aston  says,  "It 
comprehends  every  species  of  fraud, 
knavery,  or  criminal  conduct  in  the 
master,  by  which  the  owners  or 
freighters  are  injured."  "Whatso- 
ever," says  Lord  Mansfield,  "is,  by 
the  master,  a  cheat,  a  fraud,  a  cozen- 
ing, or  a  trick,  is  barratry."  Vallejo 
V.  Wheeler,  Cowp.  143.  Chief  Jus- 
tice Tilghman  gives  the  same  defini- 
tion in  Wilcocks  v.  Union  Ins.  Co.,  2 
Binn.  K.  574.  Lord  Mansfield  says, 
"I  take  the  word  barratry  to  have 
been  originally  introduced  by  the 
Italians.  In  the  Italian  dictionary, 
barratare  means,  to  cheat."  Cowp. 
154.  "It  is  derived  from  harat,  that 
is,  fraud,  dolus."  Knight  v.  Cam- 
bridge, 1  Str.  681.  Sec  also  S.  C,  8 
Mod.  230;  2  Ld.  llaym.  1349;  Phyn 
V.  Royal  Exch.  Ass.  Co.,  7  T.  R.  505. 


Chief  Justice  Lee  said :  "  To  make 
barratry,  it  must  be  something  of  a 
criminal  nature,  as  well  as  a  breach 
of  contract."  Stamma  v.  Brown,  2 
Str.  1173.     See  also  S.  C,  8  East, 

136,  cited  by  Lord  Ellenborough 
from  MS.  Lord  Ellenborough  says, 
"Barratry  includes  every  species  of 
fraud  in  the  relation  of  the  master  to 
his  owners,  by  which  the  subject-mat- 
ter insured  might  be  endangered." 
Earle  v.  Rowcroft,  8  East,  126.  Mar- 
shall, c.  12,  s.  6,  p.  515,  says  barratry 
"may  be  defined  to  be  any  act  com- 
mitted by  the  master  or  mariners,  for 
an  unlawful  or  fraudulent  purpose, 
contrary  to  their  duty  to  their  own- 
ers, and  whereby  the  owners  sustain 
an   injury."     Park,   7th  London  ed. 

137,  says  it  is  "any  act  of  the  master 
or  mariners  of  a  criminal  or  fraudu- 
lent nature,  or  which  is  grossly  negli- 
gent, tending  to  their  own  benefit,  to 
the  prejudice  of  the  owners,  without 
their  consent."  On  the  continent  of 
Europe  misconduct  or  negligence  of 
the  master,  though  without  fraud,  is 
considered  to  be  barratry.  1  Emer. 
c.  12,  s.  3. 


SECT.  III.]  BARRATRY.  621 

As  where  the  master  honestly  misconstrues  his  instructions, 
or  commits  an  error  as  to  the  best  mode  of  carrying  them  into 
effect :  ^ 

Or  deviates  through  ignorance,  without  any  fraudulent  intent :  ^ 
Or  violates  a  blockade  through  ignorance  of  the  law."^ 

1064.  Barratry  may  he  committed  by  jjcrsons  carrying  goods 
by  land. 

Thus  goods  being  insured  "  from  London  by  land  carriage  to 
Harwich,  and  thence  by  packet  to  Gothenburg,"  were  lost  be- 
tween London  and  Harwich  by  the  fraud  and  negligence  of  the 
carriers.  Lord  Ellenborough  said,  "  The  word  barratry  was  large 
enough  to  include  every  species  of  fraud  committed  by  the  wagoner 
or  servants."  * 

1065.  By  our  law,  any  one  may  be  insured  against  barratry 
committed  by  another. 

This  stipulation  of  a  policy  of  insurance  stands  on  the  same 
footing  as  the  bond  of  indemnity  so  frequently  required  by  the 
government,  as  well  as  by  private  corporations  and  individuals,  of 
treasurers,  cashiers,  secretaries,  and  other  officers  and  agents.  The 
master  or  any  mariner  may  be  insured  against  barratry.^ 

1066.  A  deviation  or  delay  for  the  cajjtahi's  i)rivate  ])urposes 
is  barratry  : 

As  where  a  ship  was  chartered  for  a  voyage  from  London  to 
Seville,  on  which  voyage  goods  were  shipped  and  insured,  and  the 
captain,  with  the  privity  of  the  owner,  put  into  Guernsey  to  take 
in  brandy  and  wine  on  his  own  account,  without  the  knowledge  of 
the  charterer :  ^ 

And  in  case  of  the  master  on  a  voyage  to  New  Orleans  drop- 
ping anchor  in  the  Mississippi  and  going  in  his  boat  up  to  New 

1  Bottomly  v.  Bovill,  5  B.  &  C.  210 ;  5  Stone  u.  National  Ins.  Co.,  19  Pick. 
S.  C,  7  D.  &  R.  702.  34. 

2  Phyn  V.  Royal  Exch.  Ass.  Co  ,  7  6  Vallejo  v.  Wlieeler,  Cowp.  143 ; 
T.  R.  505.  S.  C,  more  fully  stated,  Lofft,  G45, 

3  Dederer  v.  Delaware  Ins.  Co.,  2  andseeastatementof  the  case,  1  Johns. 
Wash.  C.  C.  R.  61.  234,  n.;  235,  n. 

4  Boehm  v.  Combe,  2  M.  &  S.  172. 


622  RISKS    COVERED.  [CHAP.  XIII. 

Orleans  to  inquire  about  the  market  there  for  a  private  adventure 
of  his  own,  and  finding  he  could  not  dispose  of  it  there,  sailing  for 
the  Havana.^ 

1067.  Where  a  loss  is  incurred  in  consequence  of  an  inten- 
tional contravention  of  Jaw  on  the  part  of  the  master  or  mariners, 
it  comes  ivithin  the  rislc  of  barratry.  If  the  loss  happens  imme- 
diately by  a  peril  insured  against,  in  consequence  of  an  uninten- 
tional contravention  of  law  by  the  master  or  men,  without  fraud  or 
exceeding  recklessness,  or  very  gross  negligence  and  violation  of 
duty,  the  underwriters  are  answerable  for  it  as  happening  by  such 
perils,  if  the  same  is  insured  against,  though  the  insurance  is  not 
against  barratry,  provided  the  master  and  officers  have  such  know- 
ledge of  the  well-known  customs  and  regulations  relative  to  the 
conduct  of  the  adventure  as  is  requisite  in  order  to  render  the  ship 
seaworthy.2 

1068.  Trading  with  the  public  enemy  is  a  barratrous  act,  even 
though  done  with  the  purpose  of  benefiting  the  owners :  ^ 

So  is  collusion  by  the  captain  with  an  enemy  privateer,  to  have 
bis  ship  captured :  ^ 

And  fraudulently  sailing  for  a  port  of  the  enemy :  ^ 

And  resistance  to  search  when  rightfully  demanded  by  a  belli- 
gerent :  ^ 

And  the  rescue  of  a  neutral  vessel  detained  and  sent  in  for  exa- 
mination by  a  belligerent ;  being,  in  effect,  a  resisting  of  the  right 
of  search :  "^ 

And  wilful  violation  of  blockade  :  ^ 

Or  of  an  embargo :  ^ 

•  Ross  I'.  Hunter,  4  T.  R.  33,  7  Dederer  v.  Delaware  Ins.  Co.,  2 

2  Supra,  s.  2,  No.  1049.  Wash.  C.  C.  R.  61.     See  also  AVil- 

3  Earle  v.  Rowcroft,  8  East,  126.  cocks  v.  Union  Ins.  Co.,  2  Binn.  574. 
See  this  case  infra  in  this  section.  8  Calhoun  v.  Ins.  Co.  of  Pennsylva- 

4  Archangel©  i-.  Thompson,  2  Camp,  nia,  1  Binn.  293  ;  Yos  v.  United  Ins. 
620.  Co.,  2  Johns.  Cas.  180. 

5  Goldsmidt  r.  Whitmore,  3  Taunt.  9  Robertson  r.  Ewer,  1  T.  R.  127, 
508.  as   stated  by  Lord  Ellenborough,  8 

c  Brown  v.  Union  Ins.  Co.  of  New     East,  138. 
London,  6  Hall's  Law  Journal,  526. 


SECT.  III.]  BARRATRY.  623 

And  in  case  of  the  captain's  going  off  the  course  and  fraudu- 
lently selling  the  vessel.^ 

In  case  of  a  voyage  from  St.  Petersburg  to  London,  the  ship 
having  put  into  Yarmouth  for  repairs,  the  captain  left  there  and 
went  to  visit  his  family  in  Ireland,  and  did  not  return  to  Yarmouth 
until  about  six  weeks  after  the  vessel  had  been  repaired  and  in  a 
state  to  have  proceeded  on  her  voyage.  Subsequently,  having 
concealed  the  vessel's  papers,  he  sailed  for  the  Azores  with  forged 
papers.  Defence  of  deviation  by  delay,  prior  to  the  barratrous 
departure  from  the  course  of  the  voyage,  being  alleged,  Mr.  C.  J. 
Dallas  left  it  to  the  jury  whether  the  captain  had  meditated,  and 
begun  the  preparations  for  the  execution  of,  his  fraudulent  project 
during  his  delay  in  Ireland  ;  and  they  found  a  verdict  that  his  de- 
lay was  barratrous,  which  verdict  was  approved  by  the  court.^ 

1069.  Cruising  illegally  and  contrary  to  instructions  is  bar- 
ratry. 

In  case  of  letters  of  marque  being  taken  as  an  inducement  to 
seamen  to  ship,  without  any  intention,  or  the  clearance  requisite 
by  statute,  to  cruise,  the  captain  was  instructed  to  proceed  to  his 
port  of  destination  with  all  expedition.  After  getting  to  sea,  and 
with  the  consent  of  a  major  part  of  his  crew,  he  commenced  cruis- 
ing, and  plundered  one  American  vessel,  and  took  another  as  prize 
to  Bermuda,  where  his  own  vessel  was  wrecked.  This  was  held 
to  be  barratry.^ 

1070.  In  case  of  barratrous  deviation  under  a  policy  against 
barratry,  the  underwriters  subsequently  remain  liable  on  the  policy 
notwithstanding  such  deviation.* 

1071.  Theft,  embezzlement,  and  toilful  destruction  of  the  pro- 
perty insured,  are  in  their  nature  barratrous  acts  :^ 

1072.  So  also  is  an  attempt  to  smuggle  goods,  either  at  a  home 
port,^  or  in  a  foreign  port.''' 

1  Dixon  V.  Reid,  5  B.  &  A.  597;  5  Falkner  r.  Ritchie,  2  M.  &  S.  290 ; 
S.  C,  1  D.  &  R.  207.  Marcardier  v.  Chesapeake  Ins.  Co.,  8 

2  Roscow  V.  ^orson,  8  Taunt.  684.  Cranch,  39  ;  and  see  cases  on  barratry 

3  Moss  V.  Byrom,  G  T.  R.  379.  generally. 

4  Vallejo  V.  Wheeler,  Cowp.  143  ;  6  Pijjon  v.  Cope,  1  Camp.  434  ;  Val- 
S.  C,  Lofft,  G45 ;  Park  on  Insurance,  lejo  v.  Wheeler,  Cowp.  143. 

138.  7  Knight  v.  Cambridge,  1  Str.  581 ; 


624  RISKS   COVERED.  [CHAP.  XIII. 

1073.  Where  the  master  deliberately  commits  a  violation  of 
laiv,  whereby  the  luirties  to  the  adventure  obviously  may  be  pre- 
judiced, it  is  barratry,  though  he  has  not  his  private  advantage 
especially  in  view  to  their  injury,  and  even  though  he  may  intend 
their  benefit. 

During  war  between  England  and  the  Netherlands,  an  English 
vessel  was  insured  for  a  voyage  to  the  coast  of  Africa  and  the 
West  Indies.  The  captain,  being  on  the  African  coast  and  not 
finding  a  good  market  at  the  British  settlements,  proceeded  to 
D'Elmina,  a  Dutch  fort,  where  he  exchanged  his  cargo.  His 
object  in  going  to  D'Elmina  was  to  purchase  a  cargo  cheaply  and 
expeditiously.  Besides  his  regular  pay,  he  was  entitled  to  com- 
missions on  his  purchases.  The  vessel  was  seized  and  forfeited, 
in  consequence  of  this  illegal  act. 

Lord  EUenborough  said:  "It  has  been  asked,  how  this  act  of 
the  captain  in  going  to  D'Elmina,  in  order  to  purchase  his  cargo 
more  cheaply  and  expeditiously  for  his  owners,  is  a  breach  of 
trust,  as  between  him  and  them  ?  Now  I  conceive  the  trust 
reposed  in  the  captain  of  a  vessel  obliges  him  to  obey  the  written 
instructions  of  his  owners ;  and  where  his  instructions  are  silent, 
he  is  at  all  events  to  do  nothing  but  what  is  consonant  to  the  laws 
of  the  land,  whether  with  or  without  a  view  to  their  advantage. 
I  cannot,  for  a  moment,  suffer  it  to  be  supposed  that  a  captain  is 
not  guilty  of  a  breach  of  trust  to  his  owners,  who  does  an  act 
which  is  injurious  to  them." 

It  has  been  strongly  contended,  that  if  the  conduct  of  the  mas- 
ter, although  criminal  in  respect  to  the  state,  were,  in  his  opinion, 
likely  to  advance  his  owner's  interest,  and  intended  by  him  so,  it 
will  not  be  barratry.     But  to  this  we  cannot  assent."  ^ 

1074.  A  gross  and  palpable  violation  of  trust  by  the  captain, 
and  a  recldcss  disregard  to  his  duty,  is  barratry,  though  without 
any  view  to  his  own  particular  advantage  to  the  prejudice  of  his 
principals : 

8  Mod.  230;  2  Ld.  Ilaym.  1349.    The  pears  to  have   been  an   attempt  to 

report  of  this  case  does  not  state  what  evade  duties.    See  also  American  Ins. 

was  the  act  of  the  captain,  but  in  Co.  v.  Dunham,  12  "Wend.  4G3;  S.  C, 

Stamma  v.  Brown,  2  Str.  1173,  and  15  id.  9. 

Vallejo  V.  AMiecler,  Cowp.  1 13,  it  ap-  •  Earle  v.  Ilowcroft,  8  East,  126. 


SECT.  III.]  BARRATRY.  625 

As  in  case  of  the  captain's  sailing  with  an  unfavorable  wind, 
contrary  to  the  directions  of  the  pilot,  having  before  refused  to 
sail,  when  the  wind  was  fair;  and  his  disregarding  the  pilot's  in- 
structions in  other  respects,  though  informed  of  the  consequences  ; 
and  his  conduct  in  cutting  the  cable  so  that  the  ship  drifted  on  the 
rocks;  Lord  Ellenborough  remarking  that  "it  has  been  solemnly- 
decided,  that  a  gross  malversation  by  the  captain,  in  his  office,  is 
barratrous."  i 

"If  the  master,  knowing  the  inevitable  danger  of  capture  if  he 
proceeded  on  his  voyage,  should  notwithstanding  continue  it,  and 
expose  the  vessel  to  certain  seizure,  this  will  be  barratry."  ~ 

"If,"  says  Mr.  Justice  Johnson,  "a  master  sees  another  in  the 
act  of  scuttling  or  firing  the  ship,  and  will  not  rise  from  his  berth 
to  prevent  it,  he  is,  prima  facie,  chargeable  with  barratry  ;  although 
a  mere  nonfeasance,  it  is  a  breach  of  trust,  a  fault,  an  act  of  infi- 
delity to  his  owners."  ^ 

The  doctrine  of  the  preceding  cases  is  supported  by  divers 
others.^ 

Some  cases  hav^e  supported  a  doctrine  different  from  the  two 
last  general  propositions  above  stated  : 

As  where  the  master  of  a  neutral  vessel  covered  belligerent  pro- 
perty as  neutral :  ^ 

And  where  the  master  was  induced,  by  the  offer  of  a  reward,  to 
go  off  the  course  of  his  voyage  to  rescue  a  ship  that  had  been  run 
away  with.*^ 

In  each  of  these  cases  the  master  had  no  special  view  to  his 
own  benefit  to  the  prejudice  of  his  owners  ;  and  on  the  ground,  as 
has  been  remarked,  of  its  being  his  "mistake,"  rather  than  "gross 


1  Hayman  v.  Parish,  2  Camp.  149.  lejo  v.  Wheeler,  Cowp.  143 ;  Moss  v. 

2  Richardson  v.  Maine  Ins.  Co.,  6  Byrom,  6  T.  R.  379  ;  Brown  v.  Union 
Mass.  R.  102,  at  pp.  117,  121;  and  Ins.  Co.  of  New  London,  6  Hall's  Law 
see  also  Goldsmidt  v.  Whitmore,  3  Journal,  526  ;  Calhoun  v.  Ins.  Co.  of 
Taunt.  508.  Pennsylvania,  1  Binn.  293,  per  Brack- 

3  Patapsco   Ins.   Co.  v.  Coulter,  3  enridge,  J. 

Peters's  Sup.  Ct.  R.  222.  5  Crousillat  v.  Ball,  4  Dall.  294. 

4  Robertson  v.  Ewer,  1  T.  R.  127;  6  Hood's  Ex'rs  v.  Nesbitt,  2  Dall. 
Stamma  v.  Brown,  2  Str.  1173  ;  Val-  137 ;  1  Yeates,  114. 

VOL.  I.  53 


626  RISKS  COVERED.  [CHAP.  XIH. 

malversation,"  ^  these  acts  were  held  not  to  be  barratry.  But 
the  cases  seem  to  be  instances  of  such  gross  violation  of  duty, 
to  the  evident  jeopardy  of  the  interest  of  the  owners,  as  to  come 
within  the  above  authoritatively  established  construction  of  bar- 
ratry. 

1075.  The  warranty  of  neutral  property  as  lawful  trade  does 
not  diminish  or  affect  the  risks  assumed  by  the  underwriters  against 
barratry. 

Under  a  policy  on  the  ship  Ann,  "warranted  free  from  any 
charge,  damage,  or  loss,  which  may  arise  in  consequence  of  seiz- 
ure or  detention  of  the  property,  for  or  on  account  of  any  illicit  or 
prohibited  trade,"  the  master,  without  the  knowledge  of  his  owner, 
privately  conveyed  a  quantity  of  gunpowder  on  board  of  the  ves- 
sel on  his  own  account,  of  which  no  mention  was  made  in  the 
log-book.  The  vessel  was  seized  and  condemned  at  St.  Domingo, 
on  account  of  having  this  article  on  board,  which  was  there  pro- 
hibited. The  court  said,  "We  have  no  doubt  on  the  conduct  of 
the  master  :  it  was  certainly  barratry."  '^ 

In  an  action  on  a  policy  upon  goods  warranted  neutral,  barratry 
being  one  of  the  risks  insured  against,  Tilghman,  C.  J.,  said,  that, 
"taking  the  whole  instrument  together,  he  thought  it  most  reason- 
able so  to  construe  it  as  to  leave  the  insurance  against  barratry  in 
full  force.  On  this  principle  the  warranty  will  imply,  that  as  to 
all  acts  to  be  done  by  the  assured  themselves,  or  by  their  agents, 
except  only  such  as  amount  to  barratry,  the  neutral  character  shall 
be  preserved."  ^ 

If  the  captain  smuggles  goods  without  the  consent  of  his  owners, 
it  is  barratry,  though  the  policy  is  "upon  all  lawful  trade,"  for, 
said  Lord  Kenyon,  "the  words  lawful  trade,  in  the  policy, 
mean  the  trade  in  which  the  ship  is  sent  by  the  owners."^ 

1076.  If  the  oumers  are  in  fault  in  not  preventing  any  act  of 
the  master  or  mariners,  though  they  do  not  directly  assent  to  it, 
the  act  is  not  barratry  : 


1  1 4  Mass.  R.  1 .  3  Wilcocks   v.   Union   Ins.    Co.,    2 

2  Suckley   v.  Dclaficld,  2  Caines,     Binn.  574. 

222.  ^Uaveloc  i".  Uancil,  3  T.  R.  277. 


SECT.  III.]  BARRATRY.  627 

As  in  a  case  in  which  it  appeared  that  the  mariners  had  three 
times  successively  subjected  a  vessel  to  the  danger  of  seizure  and 
forfeiture,  by  smuggling,  though  without  the  knowledge  of  the 
owners.  The  loss  by  these  seizures  being  claimed,  Lord  Ellen- 
borough  said:  "This  is  a  clear  case  of  crassa  negligentia  on  the 
part  of  the  assured.  It  was  his  duty  to  have  prevented  these  re- 
peated acts  of  smuggling  by  the  crew.  By  his  neglecting  so  to 
do,  and  allowing  the  risk  to  be  monstrously  enhanced,  the  under- 
writers are  discharged."  ^ 

1077.  Barratry  being  an  act  done  against  the  owners  of  the 
ship,  the  assured  cannot  recover  for  a  loss  by  a  barratrous  act  of 
the  master  done  ivith  the  consent  of  the  owner,  or  the  person  who 
is  considered  to  be  such,  in  respect  of  barratry ;  for,  says  Lord 
Mansfield,  "nothing  is  so  clear  as  that  no  man  can  complain  of  an 
act  to  which  he  himself  is  a  party."  ^  In  such  case  the  act  can- 
not be  said  to  be  done  against  the  owner. 

The  captain  of  a  ship,  a  Frenchman,  with  the  concurrence  of 
one  of  the  owners,  also  a  Frenchman,  by  means  of  new  bills  of 
lading,  and  with  the  design  of  embezzling  the  property,  put  the 
cargo  into  the  hands  of  a  person  named  as  consignee  in  the  new 
bill  of  lading,  to  whom  it  had  not  been  consigned.  This  conduct 
was  considered  to  be  barratry  in  France,  but  in  England  it  was 
held  not  to  be  so.  Lord  Mansfield  said  :  "The  point  to  be  con- 
sidered is,  whether  barratry  can  be  committed  against  any  but  the 
owners  of  the  ship  ?  It  is  clear,  beyond  contradiction,  that  it  can- 
not. For  barratry  is  something  contrary  to  the  duty  of  the  master 
and  mariners,  the  very  terms  of  which  imply  that  it  must  be  in  the 
relation  in  which  they  stand  to  the  owners  of  the  ship.  An  owner 
cannot  commit  barratry  ;  he  may  make  himself  liable  by  his  fraud- 
ulent conduct  to  the  owner  of  the  goods,  but  not  as  for  barratry. 
Barratry  cannot  be  committed  against  the  owner,  with  his  con- 
sent." 3 

1078.  A  ship  being  insured  in  behalf  of  the  owner,  the 
underwriters  are  liable  under  a  policy  in  his  favor,  for  an  act 

1  Pipon  V.  Cope,  1  Camp.  434.  3  Nutt  v.  Bourdieu,  1  T.  R.  323. 

2  Cowper,  155. 


628  RISKS   COVERED.  [CHAP.  XIII. 

of  barratry   committed  hy   the  master,  ivith  the  privity  of  the 
freighter.^ 

1079.  So,  vice  versa,  where  a  chartered  ship  is  navigated  by 
the  charterer  at  his  own  risk,  he  having  the  appointment  of  the 
master,  a  deviation  by  the  master,  with  the  privity  of  the  owner, 
but  without  the  Icnowledge  of  the  charterer,  is  barratry^  in  respect 
of  others  than  the  owner. 

1080.  The  circumstance  of  the  captain's  acting  as  agent  of  his 
owner,  or  of  the  shippers,  in  another  capacity,  is  considered  by 
Emerigon  ;  ^  who  says,  that,  in  such  case,  his  acts  as  consignee  of 
the  cargo,  or  factor,  7nust  be  distinguished  from  those  which  he 
does  in  his  capacity  of  captain ;  for  it  is  only  in  this  capacity 
that  he  can  commit  barratry. 

This  distinction  was  considered  in  a  case  decided  in  New  York. 
The  captain,  being  also  consignee  of  the  cargo  insured,  was  sup- 
posed fraudulently  to  have  sunk  his  vessel  at  the  island  of  Santa 
Cruz.  "The  fraud  of  the  master,"  said  JMr.  Justice  Kent,  "was 
not  committed  in  his  character  of  consignee  of  the  cargo,  but  in 
his  character  of  master  of  the  vessel.  He  could  not  lay  aside  his 
character  and  responsibility  as  master,  until  the  vessel-  had  per- 
formed her  voyage,  and  arrived  at  her  port  of  destination."  "* 

Under  a  policy  on  the  cargo  of  the  schooner  Despatch,  from 
Havana  to  New  Orleans,  and  at  and  from  thence  to  New  York, 
the  captain,  being  supercargo  and  sole  consignee  of  the  cargo,  con- 
sisting partly  of  specie,  on  arriving  at  New  Orleans,  converted  the 
specie  to  his  own  use,  abandoned  the  voyage,  and  absconded. 
The  assured  were  owners  of  both  the  vessel  and  cargo.  It  was 
contended,  that  "there  could  not  be  barratry  in  relation  to  the 
cargo,  when  it  was  owned  by  the  o\\  ner  of  the  vessel ;  and  also, 
that  the  act  of  the  captain  ought  to  be  referred  to  his  character  of 
consignee  of  the  cargo.  But  the  court  said,  "This  was  clearly  a 
breach  of  duty  in  his  character  of  master,  though  he  had  a  super- 
added character  of  consignee."  ^ 

1  Boutflowcr  V.  ^VilInar,  2  Solwyn,  3  Tome  1,  p.  370,  c.  12,  s.  3.  See 
N.  P.  590.  also  Casar.  Disc.  1,  n.  75,  7G. 

2  Vallcjo  V.  Whcclcr,  Cowp.  113;  4  Kenclncki'.DelaficUl,2Cainos,67. 
and  see  1  Johns.  11.  231,  n.  5  Cook  v.  Commercial  lus.  Co.,  11 


SECT.  III.]  BARRATRY.  629 

1081.  The  control  and  superintendence  which  the  assured  has 
of  the  conduct  of  the  mariners,  and  is  supposed  to  exercise  through 
the  master,  and  the  little  trust  that  is  ordinarily  and  necessarily 
reposed  in  them,  render  the  assured  answerable  for  their  conduct 
in  a  much  greater  degree  than  he  is  for  that  of  the  master ;  and 
accordingly,  the  insurers  are  in  proportion  less  answerable  for  any 
breach  of  trust  on  their  part,  since  it  is  the  fault  of  the  assured  to 
repose  any  very  great  trust  in  them. 

With  this  distinction,  an  act  of  barratry  in  the  mariners  does  not 
differ  from  the  same  act  in  the  master,  and  therefore,  where  an  act 
barratrous  in  its  nature  is  done  by  the  mariners,  the  insurers  are 
answerable  for  a  loss  occasioned  by  it,  if,  with  due  precautions  and 
diligence,  it  could  not  have  been  prevented.^ 

In  respect  to  petty  thefts  and  embezzlements  by  the  mariners, 
the  insurers  are  held  not  to  be  answerable  for  them,  where,  with 
due  vigilance,  they  might  be  prevented.  Losses  of  this  description 
are  more  usually  paid  by  withholding  wages.  Still,  such  loss  may 
be  stipulated  against  in  the  policy. 

But  when  any  crime  or  fraud  is  committed  by  the  mariners, 
under  such  circumstances  that  it  could  not  have  been  prevented 
by  the  prudence  and  vigilance  of  the  assured,  or  his  representative, 
the  master,  the  insurers  are  liable  for  the  loss  under  barratry  sim- 
ply: 

As  where  the  crew  compelled  the  master  to  change  his  course 
to  bring  in  a  prize  j^  and  in  another  case  to  return  to  the  port  of 

Jolins.  40.  Mr.  Justice  Kent  is  re-  sages  in  Millar,  165,  167,  and  Mar- 
ported  to  have  said:  "It  is  a  question,  shall,  452,  referred  to  by  the  judge, 
whether  even  barratry  -with  the  con-  which  makes  it  not  improbable  that 
currence  of  the  owners  of  goods  will  there  is  a  mistake  in  the  report,  and 
exempt  the  insurer  of  goods  belong-  that  it  ought  to  be,  "  with  the  concur- 
ing  to  an  innocent  shipper.  The  rencc  of  the  owners  of  the  ship." 
English  authorities  do,  however,  look  '  Pipon  v.  Cope,  1  Campbell,  434* 
very  strongly  to  the  opinion,  that  the  American  Ins.  Co.  v.  Bryan,  26  Wend, 
insurer  would  not,  in  such  case,  be  563;  King  v.  Shepard,  3  Story's  R. 
responsible."     Kendrick  v.  Delafield,  349. 

2  Caincs,  73.     1  do  not  know  of  any  2  EJton  v.  Brogden,  2   Str.  1264. 

English  authorities  to  this  effect,  nor  See  4  B.  &  P.  186,  and  Park,  142,  n. ; 

is  the  position  supported  by  the  pas-  Marsh.  Ins.  521,  3d  ed.;  Vallejo  v. 


53 


* 


630  RISKS   COVERED.  [CHAP.  XHI. 

departure,  from  an  apprehension  of  corsairs;^  it  was  held  that  the 
insurers  were  answerable.  Sir  R.  P.  Arden,  Master  of  the  Rolls, 
remarks  that  this  was  a  case  of  barratry  in  the  mariners,-  as  it 
plainly  was,  and  he  thinks  that  the  reported  dictum  of  Lee,  C.  J., 
to  the  contrary,^  must  be  an  error  of  the  reporter. 

Where  four  of  the  mariners  conspired  with  some  prisoners  of 
war  on  board,  and  overpowered  the  master  and  the  rest  of  the 
crew,  and  ran  the  ship  ashore,  it  was  held  to  be  a  loss  by  barra- 
try ."^ 

lOS-3.  Barratry  being  an  act  prejudicial  to  the  owners,  and 
done  without  their  consent,  it  is  plain  that  it  cannot  he  committed 
by  a  master  who  is  owner  or  part-owner  of  the  vessel.^ 

If  there  is  any  question  whether  he  is  owner,  it  belongs  to  the 
insurers  to  show  that  he  is  so.  It  is  sufficient  for  the  assured  to 
make  out  the  barratrous  act,  and  the  underwriters  must  show  any 
thing  that  discharges  them  from  their  agreement  of  indemnity.^ 

Where  the  master  was  general  owner  of  the  ship  which  he  had 
bottomried  and  mortgaged,  but  of  which  he  had  the  control  and 
navigation,  Lord  Hardwicke  held  that  he  could  not  commit  barra- 
try, so  as  to  give  the  assured  on  goods  a  claim  against  his  under- 
writers under  this  risk." 

10S3.  The  rule  as  to  ownership  in  respect  to  barratry,  as  laid 
down  by  Mr.  Justice  Story,  is,  that  "a  person  may  be  owner  for 
the  voyage  who  hires  the  ship  for  the  voyage,  and  has  the  exclu- 
sive possession,  command,  and  navigation  of  the  ship."  ^ 

Accordingly,  the  case  then  under  consideration  was  held  not 
to  be  one  of  barratry,  because  the  master  of  the  vessel  chartered. 


Wheeler,  Cowp.  143;  and    Scott  r.  ^  Jiarcardier  i'.  Chesapeake  Ins.  Co., 

Thompson,  4  B.  &  P.  181 ;  for  remarks  8  Cranch,  39. 

jipon  Elton  v.  Brogden,  as  to  its  being  ^  Ross  v.  Hunter,  4  T.  R.  33 ;  Stein- 

a  case  of  barratry.  back  v.  Ogden,  3  Caines,  1 ;  M'lntj-re 

1  Driscol  r.  Passmore,  1  B.  &  P.  200.  r.  Bovrne,  1  Johns.  229. 

2  De  Frise  v.  Stephens,  Marsh.  Ins.  "  Lewen  r.  Suasso,  Postleth.  Diet. 
2d  ed.,  521,  n.  art  Assurance. 

3  2  Str.  1264.  ^  Marcardier  u.  Chesapeake  Ins.  Co., 
*  Toulmin  i'.  Anderson,  1   Taunt.  8  Cranch,  39.     See  also  Ilooe  v.  Gro- 

227.  verman,  1  Cranch,  214. 


SECT.  III.]  BARRATRY.  "  631 

who  was  himself  the  owner,  retained  "the  exclusive  possession, 
command,  and  management  of  her,  and  she  was  navigated  at  his 
expense." 

Lord  Mansfield  says  :  "  It  is  material  whether  the  owner  of  the 
goods  has  the  direction.  If  the  ship  be  let,  as  a  house,  then  the 
freighter  is  owner,  but  if  it  be  only  a  covenant  that  the  ship  shall 
go  only  that  voyage  for  the  freighter,  then  he  has  only  the  use  of 
the  vessel."  ^ 

The  doctrine  thus  laid  down  is  broader  than  that  of  Mr.  Justice 
Story,  as  it  applies  to  the  charter  of  the  whole  ship  for  a  voyage 
or  period,  during  which  the  charterer  has  the  use  and  control  of 
the  ship.  In  the  case  then  before  the  court,  the  charterer  hired 
the  ship  for  a  voyage  from  London  to  Seville  and  back,  and  put  it 
up  as  a  general  ship,  and  the  assured  and  others  shipped  goods  for 
the  voyage.  It  was  held  that  the  charterer,  and  not  the  owner, 
was  to  be  considered  to  be  owner,  in  respect  to  barratry.- 

Where  the  master  had  given  his  promissory  note  for  the  amount 
of  the  purchase-money  of  a  vessel,  which  was  indorsed  by  another 
person,  to  whom  the  bill  of  sale  was  made  out,  and  in  whose  name 
the  vessel  was  registered  as  collateral  security,  it  was  held  that  the 
master  could  not  commit  barratry ;  ^  that  is  to  say,  he  was  to  be 
considered  as  an  owner. 

So  it  was  held  that,  in  a  similar  case,  the  owner  could  not  reco- 
ver from  his  underwriters  against  barratry,  indemnity  for  a  loss  by 
a  barratrous  act  of  the  master  assented  to  by  the  charterer.  Hobbs, 
the  owner  of  a  ship,  chartered  her  to  Woodman,  who  agreed  to 
pay  a  certain  sum  to  the  owner  if  she  should  be  lost.  Woodman 
was  to  have  the  absolute  control  of  the  ship.  He  consigned  her 
to  Kendal,  at  Rio  Janeiro,  "  whose  orders  he  desired  the  captain 
implicitly  to  obey."  Kendal  being  at  Buenos  Ayres  at  the  time 
of  the  ship's  arrival  at  Rio,  his  partner  at  the  latter  place  ordered 
the  captain  to  proceed  to  Buenos  Ayres,  who  accordingly  pro- 
ceeded thither,  where  Kendal  sent  smuggled  goods  on  board,  in 


1  Vallejo  r.  Wheeler,  Cowper,  143  ;        ^  Barry  v.  Louisiana  Ins.  Co.,  11 
S.  C,  Lofft,  G45.  Margin,  R.  N.  s.  630. 

2  Vallejo  V.  Wheeler,  supra. 


632  RISKS    COVERED.  [CHAP.  XIII. 

consequence  of  which  the  ship  was  seized  and  condemned.  Lord 
Ellenhorough  :  "I  clearly  think  the  loss  is  to  be  imputed  to  the 
plaintiff  himself.  If  I  give  the  dominion  of  my  ship  to  a  charterer, 
his  acts  are  my  acts  ;  and  in  this  case  Kendal,  whose  orders  the 
master  implicitly  obeyed,  according  to  his  instructions,  was,  in 
point  of  law,  the  agent  of  the  assured.  Therefore  the  loss  arose 
from  his  own  orders,  and  there  is  no  pretence  for  imputing  it  to 
barratry."  1  It  does  not  appear  at  whose  expense  the  ship  was 
navigated  in  this  case. 

In  a  case  decided  in  New  York,  M'Intyre,  the  assured,  and 
owner  of  a  vessel,  let  her  to  freight  to  Aiken  and  Brice,  for  a  voy- 
age from  New  York  to  Trinidad  and  back,  with  liberty  to  touch 
at  Curacoa,  "excepting  one  half  of  the  cabin,  the  privilege  for 
twenty  barrels  for  the  master  and  mate,  and  so  much  of  the  hold 
and  forecastle  as  was  necessary  for  the  accommodation  of  the 
master  and  crew,  provisions,"  &ic.  M'Intyre  effected  insurance 
on  the  vessel  for  the  same  voyage.  Brice  acted  as  supercargo. 
While  the  vessel  was  proceeding  on  her  return  from  Trinidad  to- 
wards Curacoa,  the  master,  at  the  request  of  Brice,  and  on  being 
promised  one  hundred  dollars  with  indemnity  to  himself  and  his 
owners,  changed  his  course  and  went  to  a  port  on  the  Spanish 
Main.  A  loss  afterwards  occurred,  which  was  claimed  by  M'In- 
tyre under  the  risk  of  barratry,  and  the  decision  was  in  his  favor."  ^ 

In  a  case  under  a  policy  upon  goods,  a  loss  was  claimed  for 
barratry  of  the  master,  who  hired  the  ship  at  a  certain  sum  per 
month,  the  owners  to  keep  her  in  repair,  the  master  to  victual  and 
man  her.  The  master  embezzled  the  cargo.  The  court  said  ; 
"The  master  was  to  be  considered  owner  for  the  voyage."^ 


1  Ilobbs  V.  Ilannam,  3  Camp.  93.  Jones,  3  Esp.  27.  And  on  the  ques- 
The  same  doctrine  is  adopted  in  Soarcs  tion  as  to  the  owner  or  charterer  be- 
V.  Thornton,  1  J.  B.  Moore,  373.  ing  answerable   to  the  shipper,  see 

2  M'Intyre  r.  Browne,  1  Johns.  229.  Saville  v.  Campion,  2  B.  &  Aid.  503 ; 

3  Ilallet  V.  Columbian  Ins.  Co.,  8  Campion  f.  Colvin,  3  Bing.  N.  C.  17 ; 
Johns.  272.  And  a  charterer  liaving  Christie  u.  Lewis,  2  Brod.  &Bing.  410; 
the  absolute  control  is  the  person  an-  Tate  v.  Meek,  8  Taunt.  280 ;  Yates  v. 
swerable  to  the  shipper  of  goods,  and  Ilailston,  id.  293  ;  Yates  v.  Maynell, 
not  the  general   owner.     James  v.  id.  302 ;  Newberry  v.  Colvin,  7  Bing. 


SECT.  III.]  BARRATRY.  633 

So,  where  it  was  verbally  agreed  that  the  master  should  have 
the  use  and  control  of  a  vessel  from  November  to  May,  and  victual 
and  man  her  at  his  own  expense,  the  owners  to  be  at  the  expense 
of  repairs,  the  master  to  pay  over  one  half  of  her  earnings,  it  was 
held  that  this  agreement  made  the  master  owner  as  to  barratry, 
and  accordingly,  that  "the  offence  of  barratry  could  not  be  com- 
mitted by  him."' 

The  assured  effected  a  policy  on  the  freight  assigned  to  them 
by  the  owner  of  the  vessel,  as  security  for  advances,  intending, 
and  in  the  legal  proceedings  allesinfr  the  insurance  to  be  made 
for  their  own  benefit  to  the  amount  of  the  balance  due  to  them, 
surplus  for  the  benefit  of  the  owner  of  the  ship ;  with  the  clause 
excepting  barratry  if  the  assured  were  owners.  It  was  held  by 
the  Supreme  Court  of  Louisiana,  that,  as  the  assured  were  assign- 
ees of  the  owner,  and  insured  in  part  at  least  for  his  benefit,  the 
policy  was  subject  to  the  exception  of  barratry .^ 

1084.  It  has  been  thought  singular  that  insurers,  who  have 
not  the  appointment  or  control  of  the  captain,  and  who  often  do 
not  know  him,  should  stipulate  to  make  indemnity  for  his  frauds 
and  misconduct  to  the  assured,  whose  agent  he  is,  and  who  in  case 
of  insurance  on  the  ship,  may  dismiss  him  when  they  please.^  "It 
is  strange,"  says  Lord  INIansfield,  "  that  barratry  should  have  ever 
crept  into  insurance."^  But  what  is  there  strange  in  the  mer- 
chant's wishing  to  secure  himself  against  the'  risk  of  the  dishonesty 
of  the  master?  for  though  he  secures  himself  as  well  as  he  possi- 
bly can  against  all  risks  of  trade,  except  that  of  the  markets,  still 
there  are  many  left  for  him  to  run,  and  it  is  natural  that  he  should 
wish  to  diminish  the  number,  as  his  whole  fortune  is  often  at 
hazard.  Nor  does  it  seem  remarkable  that  insurers  should  be  will- 
ing to  take  this  risk,  provided  they  receive  an  adequate  premium. 


190;  and  for  an  opposite  decision  to  ^  Paradise  v.  Sun  Mat.  Ins.  Co.,  6 

that  in  the  preceding  cases,  Hutton  v.  La.  Annual  Reports. 

Bragg,  7  Taunt.  14.     See  also,  on  the  3  8  East,   134;    8   Johns.   213;    2 

same  question,  Parish  ?;.  Crawford,  re-  Johns.  Cas.  188. 

ported  Abbott  on  Shipp.,  5th  ed.,  19.  4  i  x,  R.  330. 

1  Taggard  v.  Loring,  16  Mass.  R. 
336. 


634  RISKS    COA^ERED.  [CHAP.  XIII. 

Courts  have  often  said  they  would  not  extend  the  construction  of 
barratry,  that  is,  that  they  will  give  the  contract  a  narrower  con- 
struction than  they  might  perhaps  do,  if  they  thought  it  expedient, 
and  on  the  whole  advisable  and  useful,  to  comprehend  this  among 
the  risks  ordinarily  insured  against.  It  seems  to  be  questionable 
whether  this  consideration  ought  to  have  much  influence  in  limit- 
ing the  construction  of  a  contract.  The  parties  themselves  gene- 
rally have  better  means  of  forming  an  opinion  respecting  consider- 
ations of  this  description,  and  their  interest  makes  them  sufficiently 
vigilant  and  active  in  availing  themselves  of  the  means  they  pos- 
sess to  judge  of  the  expediency  of  subscribing  to  stipulations,  of 
the  practical  operation  of  which  they  cannot  be  ignorant. 

The  reasons  urged  to  show  the  inexpediency  of  insuring  against 
the  barratry  of  the  master,  apply  with  very  little  force  to  policies 
on  goods  where  the  assured  is  not  owner  of  the  ship,  since  the 
master  is  often,  and  probably  in  the  greater  number  of  instances, 
as  well  known  to  the  insurers  as  to  the  assured  ;  and  though  he  is 
to  some  purposes  the  agent  of  the  assured  on  goods,  yet  they  have 
no  more  direct  control  of  his  conduct  than  the  underwriters  have. 
Accordingly,  some  underwriters  make  a  distinction  between  poli- 
cies on  the  ship,  and  those  on  the  cargo,  and  insure  against  barra- 
try only  in  the  latter,  and  not  in  these,  if  the  assured  is  owner  of 
the  ship  as  well  as  the  goods. 

1035.  There  seems  to  he  no  reason  against  extending  indem- 
nity to  the  shipper  against  the  frauds  of  the  ship-owner ;  though 
it  requires  an  express  provision  for  this  purpose. 


SECTION    IV.       THE    INSURERS    ARE    NOT    LIABLE    FOR    ORDINARY 
PERILS    AND    LOSSES. 

1086.  Whatever  risks  are  assumed  by  the  underwriter,  his  lia- 
bility is  subject  to  two  limitations  ;  he  is  not  liable  for  the  con- 
sequences of  the  perils  assumed,  except  when  they  operate  in  an 
extraordinary  degree,  and  he  is  liable  only  for  loss  and  damage 
of  an  extraordinary  Icind. 

Mr.  Justice  Thompson  says:  "The  insurer  undertakes  only  to 
indemnify  against  the  extraordinary  and  unforeseen   perils  of  the 


SECT.  IV.]     INSURERS    NOT   LIABLE   FOR    ORDINARY   LOSSES.  G35 

sea,  not  against  the  ordinary  perils  to  which  every  ship  must  be 
exposed  in  the  usual  course  of  the  voyage."  ^ 

Mr.  Justice  Washington,  instructing  the  jury  respecting  a  claim 
for  a  loss  on  a  vessel  insured  from  Brazil  to  China,  said  :  "If  the 
loss  arose  from  the  ordinar}'^  circumstances  of  such  a  voyage  as 
this  was,  as  from  sea-damage,  or  wear  and  tear,  which,  without 
any  action  of  an  extraordinary  cause,  was  to  be  expected,  the  in- 
surer is  not  liable."  2 

The  peril  of  capture  is  not  subject  to  degrees,  but  is  always 
considered  to  be  extraordinary,  and  in  all  cases  gives  the  assured 
the  right  of  abandoning  and  claiming  for  a  total  loss.  But  other 
perils  of  the  seas  may  be  ordinary  or  extraordinary,  and  so  may 
their  effects ;  and  unless  the  degree  of  a  peril  and  its  effects  are 
both  extraordinary,  the  assured  has  no  claim  for  indemnity.  But 
the  effect  may  itself  show  that  the  cause  must  have  been  extra- 
ordinary. 

1087.  Though  the  operation  of  a  peril  insured  against  is  ex- 
traordinary, if  its  consequences  are  not  so,  it  is  not  a  loss  within 
the  policy. 

Stranding  is  usually  an  extraordinary  incident,  yet  if  its  conse- 
quences are  not  extraordinary,  the  assured  has  no  claim  against 
the  underwriters.  In  a  case  of  a  ship's  being  strained,  and  accord- 
ingly weakened,  and  injured,  in  consequence  of  stranding,  Mr. 
Justice  Baldwin  said  :  "Invisible,  uncertain,  and  conjectural  da- 
mages are  never  the  subject  of  remuneration.  I  apprehend  the 
injury  is  not  the  subject  of  adjustment,  unless  it  be  capable  of 
repair  in  the  ordinary  course  of  business.""' 

And  so  it  was  held  by  the  Supreme  Court  of  Massachusetts, 
that  underwriters  are  not  answerable  for  indefinite  straining  and 
deterioration,  which  cannot  be  repaired  and  of  which  no  specific 
estimate  or  evidence  can  be  given.'* 

1  Barnewall  v.  Church,  1  Caines,  ■*  Orrock  v.  Commonwealth  Ins.  Co., 
21 7,  at  p.  234.  21  Pick.  456 ;  Crofts  v.  Marshall,  7  C. 

2  Coles  V.  Marine  Ins.  Co.,  3  Wash.     &  P.,  597. 
C.  C.  R.  159. 

3  Sage  V.  Middletown  Ins.  Co.,  1 
Conn.  R.  239. 


636  RISKS   COVERED.  [CHAP.  XIII. 

A  vessel  insured  on  time  in  the  British  coasting  trade,  while 
lying  with  its  cargo  on  board  in  Sunderland  harbor,  moored  in  the 
usual  place  and  manner,  being  injured  and  hogged  by  taking  the 
bottom  at  low  tide,  when  there  was  nothing  extraordinary  in  the 
state  of  the  weather  and  the  water,  Jervis,  C.  J.,  Maule,  J.,  and 
Creswell,  J.,  of  the  English  Common  Pleas,  held  that  the  under- 
writers were  not  liable.^  This  case  may,  however,  be  doubted, 
since,  if  the  ship  was  seaworthy,  there  must  have  been  something 
extraordinary  and  out  of  the  common  course  in  the  manner  of 
taking  the  ground. 

Underwriters  upon  whiskey  on  board  of  a  flatboat  in  the  Mis- 
sissippi, properly  constructed  and  manned  for  such  a  navigation, 
were  held  liable  for  damage  to  the  whiskey  caused  by  a  wave 
raised  by  a  large  steamboat  passing  near  to  the  flatboat  just  at 
the  border  of  deep  and  shoal  water,  and  were  not  exonerated  on 
the  crround  of  the  occurrence  being  an  ordinary  one.^ 

What  is  to  be  considered  ordinary,  and  what  extraordinary,  in 
the  deforce  and  effects  of  the  perils,  is  a  question  for  the  jury  often 
of  much  difSculty.  It  is  sufficient  for  the  present  to  have  stated 
the  doctrine  generally  ;  the  illustrations  of  it,  and  its  application 
to  particular  cases,  will  appear  more  fully  under  the  heads  of 
perils  of  the  seas  and  the  other  divers  perils  and  losses  insured 
against.^ 

1088.  The  undenvriters  are  not  liable  to  ma'ke  indemnity  for 
the  mere  deterioration  of  the  subject  by  age  or  wear  and  tear, 
where  no  extraordinary  peril  intervenes. 


SECTION    v.       DAMAGE    ARISING    FROM    THE    QUALITIES    OF    THE 

SUBJECT. 

1089.  From  the  enumeration  already  given  of  the  perils  usually 
insured  against,  it  appears  that  the  insurers  undertake  to  inaJce  in- 


1  Magnus  v.  BuUeman,  9  Eiig.  Law  '-  "Washington  Ins.  Co.  v.  Rccd,  20 

&  Fa[.  11.  (Press  of  Little,  Brown  &  Ohio  R.  (by  Lawrence)  199. 

Co.)  4C1;  S.  C,  20  Eng.  Law  Jurist  3  See  No.  1088,  1101,  1105,  1296, 

11.  N.  8.  Com.  ri.  119.  1297,  1298,  1299. 


SECT,  v.]   DAMAGE  FROM  THE  QUALITIES  OF  THE  SUBJECT.     637 

demnity  only  for  damage  arising  from  external  accidents,  not  for 
that  occasioned  by  the  qualities  or  defects  of  the  thing  insured. 
Policies  coniain  a  provision  that  the  insurers  shall  not  be  liable  for 
any  loss  upon  certain  enumerated  articles,  unless  it  amounts  to  a 
certain  rate  per  cent.  The  articles  to  which  this  provision  relates 
are  those  most  subject  to  damage  and  decay  from  their  internal 
qualities.  But  independently  of  this  provision,  it  is  a  general  rule 
that  the  insurers  are  not,  under  the  common  form  of  the  ])olicy, 
liable  for  any  damage  or  loss  arising  from  the  qualities  or  defects 
of  the  subject  insured,  since  these  are  not  among  the  perils  assumed 
by  the  underwriter.^ 

Hemp  was  insured  from  London  to  the  coast  of  Devonshire. 
While  the  vessel  lay  near  Torbay,  a  fire  broke  out  in  the  hold 
during  the  night,  by  which  the  greater  part  of  the  hemp  was  con- 
sumed. The  origin  of  the  fire  could  not  be  discovered.  Lord 
Ellenborough  said  :  "  If  the  hemp  was  put  on  board  in  a  state 
liable  to  effervesce,  and  did  effervesce  and  generate  the  fire,  the 
assured  cannot  recover  for  the  loss."  There  being  no  proof  that 
the  fire  so  originated  the  verdict  was  for  the  assured.^ 

1090.  The  underwriters  are  not  liable  for  the  ivaste  occa- 
sioned by  ordinary  leakage,  since  it  arises  from  the  qualities  of 
the  article.  But  what  is  ordinary  and  what  is  extraordinary  leak- 
age depends  upon  the  nature  of  the  article,  and  the  length  of  the 
voyage."*  Some  insurance  companies  publish  rules  on  this  sub- 
ject.'' 

1  Potliier,  Ins.,  n.  G6.  nies,  as  to  molasses.     The  method  is 

2  Boyd  V.  Dubois,  3  Camp.  133.  to  ascertain,  in  respect  to  a  voyage, 

3  2  Valin,  83,  tit.  Ins.,  a.  31.  what  leakage  is  to  be  attributed  to 

4  The  rules  of  the  Patapsco  Insur-  ordinary  causes,  or  to  the  fault  of  the 
ance  Company,  in  Baltimore,  pub-  assured  or  bis  agents.  In  doino-  this, 
lished  in  1814,  provide  that,  "in  cases  the  season  of  the  year;  the  kind  of 
of  partial  loss  on  liquids,  ten  per  cent,  article  ;  the  description  of  vessel  in 
ordinary  leakage  shall  always  be  de-  which  it  is  contained ;  the  length  of 
ducted."  Most  of  the  forms  of  poll-  the  particular  passage ;  the  situation 
cies  in  use  in  Boston  contain  no  of  the  cargo  on  arrival ;  in  respect  of 
exception  relating  to  liquids,  nor  is  stowage ;  are  all  taken  into  considera- 
there  any  specific  rule  in  the  practice  tion.  In  some  articles  brought  from 
at  that  port,  except,  by  some  compa-  warm  climates  a   considerable   defi- 

voL.  I.  54 


638  RISKS    COVERED.  [CHAP.  XIII. 

It  appears  from  what  has  been  before  said,  that  the  mere  fact 
that  the  damage  from  leaking  or  breakage  is  more  than  ordinary, 
does  not  necessarily  give  the  assured  a  valid  claim  against  the 
underwriters,  since  it  must  appear,  either  from  the  kind  and 
degree  of  damage  or  otherwise,  that  it  has  been  occasioned  by 
some  extraordinary  accident. 

Mr.  Stevens^  says:  "According  to  the  custom  at  Lloyd's,  arti- 
cles subject  to  leakage  are  free  from  average,  unless  it  can  be 
shown  that  the  ship  has  struck  the  ground  with  such  force,  as  to 
make  it  probable  that  she  has  thereby  deranged  her  stowage." 

1091.  The  rule  at  Lloyd's  is  the  same  ivith  regard  to  earthen 
ware  and  things  liable  to  breakageJ^ 

The  force  of  the  custom  at  Lloyd's,  in  respect  to  such  articles, 
is  accordingly  equivalent,  or  rather  it  is  more  than  equivalent,  to 
the  memorandum  in  the  policy,  whereby  the  insurers  are  exempted 
from  particular  average  on  certain  articles,  unless  the  ship  be 
stranded.  But  this  rule  does  not  appear  to  be  adopted  generally 
in  the  United  States. 

1092.  Upon. the  principle  that  the  underwriters  are  not  an- 
swerable for  damage  arising  from  the  qualities  of  the  thing  in- 
sured, a  loss  of  slaves  who  die  from  despair  on  account  of  the 
failure  of  a  mutiny  or  otherwise,  has  been  considered  not  to  be  by 
the  perils  insured  against."' 


clency  is  occasioned  by  the  mere  dif-  Policies  do  not,  as  I  understand,  usu- 

fercnce  of  temperature.    In  sucli  cases  ally  contain   any   provision   on   this 

an  allowance  of  a  certain  per  cent,  subject. 

is  made  for  "shrinkage."     The  usual  i  Part  3,  art.  1. 

method  is  to  compare  the  leakage  in  2  Ibjj. 

the  particular  case  with  the  leakage  3  Pothier,  n.  G6  ;  2  Valin,  55,  tit. 

on  the  same  article  in  other  vessels,  Insurance,  a.  11 ;  Tatham  r.  Hodgson, 

which  have  performed  the  voyage  at  6  T.  R.  656.     Emerigon  never  intro- 

about  the  same  time.     It  is  said  that  duces  this  subject  of  the  insurance 

there  is  not  found  to  be  any  great  of  slaves  without  reprobation  of  the 

difficulty  in    this  mode  of  adjusting  practice  of  treating  a  being  possessed 

losses  upon  such  articles.     A  form  of  of  moral   perceptions,   human    affec- 

policy   of  the   Lexington    Insurance  tions,  and  a  mind  and  soul,  as  a  piece 

Company  expressly  exonerated    the  of  merchandise. 

insurers   from  all    loss    by   leakage. 


SECT.  VII.]  '       LOSS   BY   FIRE.  639 

In  the  case  of  an  insurance  of  animals  against  the  usual  perils, 
the  insurers  are  not  answerable  for  loss  by  disease  and  natural 
death.^ 


SECTION   VI.       EVENTS    WHICH    ENHANCE    THE    RISK.. 

1 093.  It  is  another  general  rule,  which  applies  to  all  the  risks 
assumed  by  the  underwriters,  that  they  continue  liable  for  losses 
by  the  perils  insured  against,  although  those  perils  are  greatly 
enhanced  by  events  which  the  assured  could  not  prevent,  that 
take  place  subsequently  to  the  date  of  the  policy.  If  the  ship  is 
delayed  upon  the  voyage,  without  any  fault  of  the  assured  or  his 
agents,  and  not  by  any  cause  which  makes  the  delay  a  deviation, 
the  insurers  are  still  liable,  though  the  delay  may  subject  the 
underwriter  to  a  winter  risk,  instead  of  a  summer  risk,  for  which 
only  he  would  have  been  liable,  had  there  been  no  delay  of  the 
voyage.2 

If  capture  is  one  of  the  risks  insured  against,  and  after  the 
policy  is  made,  the  risk  of  capture  is  greatly  increased  by  the 
breaking  out  of  a  war,  still  the  underwriter  is  liable.  The  risk 
of  a  declaration  of  war  is  one  of  those  which  he  assumes.^ 

SECTION    VII.       LOSS    BY   FIRE. 

1094.  Fire  is  specifically  insured  against  in  the  common  form 
of  marine  policies.  This  loss,  like  one  by  capture,  is  in  its 
Mnd  extraordinary.  Unless  a  loss  happens  from  the  qualities  or 
defects  of  the  subject  insured,"*  the  fault  of  the  assured,  or  by  some 
peril  for  which  he  is  answerable,  he  is  entitled  to  indemnity : 


1  1  Emerigon,  393,  c.  12,  s.  9.     See  ^  Vallance  v.  Dewar,  1  Camp.  503  ; 

Beaumont  on  Fire  and  Life  Insur-  and  see  supra,  No.  218. 

ance,  p.  15,  et  seq.,  cited  Angell  on  3  Planch6  v.  Fletcher,  Doug.  238; 

Fire  and  Life  Insurance,  sect.  119,  Saltus  v.  United  Ins.  Co.,  15  Johns, 

for  illustrations  of  loss  by  the  qualities  523, 

of  the  subject.  •*  Boyd  v.  Dubois,  3  Camp.  133. 


640  RISKS    COVERED.  [CHAP.  XIII. 

As  in  case  of  a  vessel  burnt  by  the  municipal  authorities  from 
fear  of  its  being  infected  and  causing  a  pestilence:  ^ 

And  of  a  subject  burnt  by  lightning :  ^ 

And  of  a  vessel  taking  fire  in  an  engagement :  ^ 

Or  burnt  by  accident  in  a  dry  dock  :  ^ 

Or  in  case  of  a  steamboat  being  burnt. ^ 

1095.  It  was  formerly  made  a  question,  whether  the  master  and 
mariners  are  justified  in  setting  fire  to  the  property  to  prevent  its 
falling  into  the  hands  of  an  enemy  1  ^ 

VaHn  is  of  opinion  that  the  insurers  are  liable  for  the  loss  in 
such  case,  if  there  was  no  other  way  of  preventing  the  property 
from  falling  into  the  hands  of  the  enemy,  or  of  pirates ;  and  he 
cites  the  decisions  of  three  several  courts  in  France  in  support  of 
his  opinion." 

Weskett  thinks  that  the  insurers  are  not  liable  for  a  loss  of  this 
description,  except  in  a  case  where  the  lives  of  the  master  and 
crew  would  be  in  danger  were  they  to  fall  into  the  hands  of  the 
enemy  or  pirates  by  whom  they  are  pursued,  and  the  ship  is  burnt 
for  the  purpose  of  facilitating  their  escape.  The  reason  he  gives 
is,  that  the  property  might  be  recaptured,  and  the  loss  be  dimin- 
ished by  the  amount  of  salvage.^  But  this  reason  does  not  show 
that  the  insurers  ought  to  be  wholly  exempted  from  the  loss  ;  it 
only  goes  to  show,  at  most,  that  what  would  be  the  net  amount  of 
the  salvage  in  case  of  recapture  ought  to  be  deducted  from  the 
amount  of  a  total  loss,  or  else,  that  the  insurers  ought  to  be  an- 
swerable only  for  the  amount  to  which  the  recaptors  would  be 
entitled  for  recovering  the  property,  supposing  the  loss,  in  such 
case,  to  be  adjusted  as  an  average. 

Lord  Ellenborough  was  of  the  same  opinion  with  Valin.  Under 
a  policy  on   the   commissions   and   privileges  of  the   captain  on  a 

1  Targa,  c.  5C  ;  Casar.  Disc.  121,  n.  5  rattison  v.  Mills,  1  Dow  &  Clark, 
12;  Emerigon,  torn.  1,  p.  434,  c.  12,     342;  2  Bligh,  (k.  s.)  519. 

s.  17.  6  Loccenius  de  Jur.  Mar.  1.  3,  c.  9 ; 

2  Pothier,  Ins.,  n.  53.  Kuricke,  Quzes.  29. 

3  Ibid.  "  2  Valin,  75,  tit.  Insurance,  a.  2C. 

4  Per  Putnam,  J.,  in  Ellery  v.  New  8  'Weskett,  tit.  Fire,  n.  6. 
England  Mar.  Ins.  Co.,  8  Pick.  14. 


SECT.  VII.]  LOSS   BY  FIRE.  641 

voyage  from  Bristol  to  the  coast  of  Africa,  and  thence  to  the  West 
Indies,  the  vessel  being  chased  by  a  French  privateer  of  greatly 
superior  strength,  after  an  unsuccessful  attempt  to  escape,  was 
burnt  by  the  captain  and  crew  to  prevent  her  failing  into  the  hands 
of  the  enemy.  Lord  EUenborough  said  in  reciting  :  "  The  case 
is  new,  but  I  am  clearly  of  opinion  that  the  assured  is  entitled  to 
recover.  Fire  is  expressly  mentioned  in  the  policy  as  one  of  the 
perils  against  which  the  underwriters  undertake  to  indemnify  the 
assured,  and  if  the  ship  is  destroyed  by  fire,  it  is  of  no  consequence 
whether  this  is  occasioned  by  a  common  accident,or  by  lightning, 
or  by  an  act  done  in  duty  to  the  state."  ^ 

1095  a.  The  damage  usually  incidental  to  the  ordinary  pro- 
cesses in  using  fire,  comes  within  the  implied  exception  of  ordinary 
risks  and  perils,  and  is  not  covered.^ 

1095  b.  Whether  underwriters  against  Jire  on  land  as  well  as 
those  against  perils  of  the  seas,  are  exonerated  from  loss  by  the 
qualities  of  the  subject  ? 

Mr.  Beaumont  ^  is  of  opinion  that  underwriters  are  not  liable 
for  the  loss  of  the  thing  which  is  consumed  by  reason  of  its  own 
qualities,  by  spontaneous  combustion,  for  instance,  without  any 
external  cause,  but  are  liable  for  the  consequent  loss  of  other  sub- 
jects covered  by  the  policy,  which  he  illustrates  speculatively  by 
supposed  cases. 

This  subject  has  already  been  considered  in  respect  to  marine 
perils,*  and  it  does  not  appear  that  the  risk  of  fire  on  land  is  on  a 
materially  different  footing.  Most  subjects  are  more  or  less  liable 
to  damage  and  destruction  by  fire,  air,  or  water,  according  to  their 
qualities.  The  question  in  this  case,  as  in  others,  is,  whether  the 
circumstances  are  ordinary  or  extraordinary,  and  whether  the 
loss  is  directly  occasioned  by  fire.^ 

1095  c.  Whether  undenvriters  are  liable  for  loss  by  fire  conse- 
quent upon  the  gross  negligence  of  the  assured  himself? 


1  Gordon  v.  Rimmington,  1  Camp,  cited  Angell  on  Fire  and  Life  Ins. 
123  ;  and  see  note  by  the  reporter.  s.  119. 

2  Supra,  No.  1086,  1087.  4  Supra,  1089,  et  seq. 

3  Fire  and  Life  Ins.,  p.  15,  et  seq.,        ^  See  infra,  s.  14,  of  this  chapter. 


54 


* 


642  RISKS    COVERED.  [CIIAP.  XIII. 

Underwriters  against  any  risk  are  doubtless  not  liable  for  loss 
purposely  incurred  by  the  assured.^  The  law  does  not,  however, 
require  of  every  assured  the  very  highest  degree  of  vigilance  and 
diligence  to  preserve  the  insured  subject  from  damage  by  fire  ;  but 
he  is  not  entitled  to  indemnity  for  negligence  closely  bordering 
upon  fraud.  The  Supreme  Court  of  Massachusetts  are  of  opinion 
that  the  underwriters  are,  at  least,  not  liable  for  loss  by  fire  occa- 
sioned by  his  extreme,  reckless,  and  inexcusable  negligence,  the 
consequences  of  which  must  have  been  palpably  obvious  to  him.^ 

1096.  Underivriiers  are  liable  for  a  loss  hy  fire  under  a  policy 
against  that  risk  only,  or  against  that  and  other  risks,  whether  on 
land  or  at  sea,  though  occasioned  by  the  negligence  or  mismanage- 
ment of  the  captain  or  mariners  at  sea,  not  of  a  barratrous  cha- 
racter, when  barratry  is  not  covered,  or  of  servants  or  persons  pro- 
perly employed  by  the  assured  in  buildings.^ 

Formerly  the  doctrine  on  this  subject  was  wavering;"*  it  is  now 
settled.^ 

A  provision  excepting  loss  by  design  of  the  assured  has  been 
considered  as  more  decidedly  fixing  the  liability  of  the  insurers  for 
losses  by  fire  set  by  incendiaries.^ 

1097.  Whether  the  underwriters  are  liable  for  loss  by  fire, 
where  the  loss  is  occasioned  or  the  subject  is  destroyed  thereby 
without  its  being  actually  burnt  ? 

1  See  supra,  No.  1064.  R.  130 ;  Patapsco  Ins.  Co.  v.  Coulter, 

2  Chandler  v.  Worcester  Mut.  Fire  3  Peters's  Sup.  Ct.  R.  222 ;  Colum- 
Ins.  Co.,  3  Cusli.  11.  328;  Angell  on  bian  Ins.  Co.  v.  Lawrence,  10  Id.  507; 
Fire  and  Life  Ins.  s.  129,  et  seq.  "Waters  v.  Merchants'  Louisville  Ins. 

3  See  supra,  s.  2,  No.  1049.  Co.,  11  Id.  213;    Gates   v.  Madison 

4  See  Emerigon,  torn.  1,  p.  433,  c.  County  Mut.  Ins.  Co.,  1  Selden's  R. 
12,  s.  17;  "Waters  I?.  Merchants' Louis-  (Court  of  Appeals,)  4G9;  St.  Louis 
ville  Ins.  Co.,  11  Peters's  Sup.  Ct.  R.  Ins.  Co.  v.  Glasgow,  8  Missouri  R. 
213;  and  Grim  v.  Phoenix  Ins.  Co.,  713.  See  supra,  No.  733,  1049  ;  Lod- 
13  Johns.  451 ;  supra.  No.  1048.  wicksw.  Kennedy, 5  Ohio  R.  (byllam- 

5  3  Kent's  Com.  300,  n.,  and  304  ;  mond,)  436 ;  Per  Curtis,  J.,  General 
Busk  V.  Royal  E.xch.  Ass.  Co.,  2  B.  &  Mut.  Ins.  Co.  r.  Sherwood,  14  How- 
A.  73  ;  Shaw  r.  Roberts,  Neville  &  ard's  U.  S.  Sup.  Ct.  R.  352,  at  p.  365. 
Perry,  279;  S.  C,  6  Ad.  &  El.  75;  6  Catlln  v.  Springfield  Ins.  Co.,  1 
Austin  V.  Drew,  4  Camp.  3G0  ;  S.  C,  Sumner,  434. 

Holt,  120  ;  G  Taunt.  43G  ;  2  Marsh. 


SECT.  YII.]  LOSS   BY   FIRE.  643 

In  case  of  a  policy  upon  the  stock  of  a  sngar-bouse,  Gibbs, 
C.  J.,  ruled,  and  the  ruling  was  supported  by  the  court,  that  damage 
to  the  stock  by  the  heat  of  the  usual  fires,  in  consequence  of  the 
mismanagement  of  the  dampers  by  those  having  charge  of  the 
sugar-house,  was  not  within  the  policy  against  fire.  A  juryman 
remarked  to  the  court :  "  If  my  servant,  by  negligence,  sets  my 
house  afire,  and  it  is  burnt  down,  I  expect,  my  Lord,  to  be  paid 
by  the  insurance  office."  Gibbs,  C.  J. :  "  So  you  would,  sir,  but 
then  there  would  be  a  fire,  whereas  here  has  been  none.  If  there 
is  a  fire,  it  is  no  answer  that  it  was  occasioned  by  negligence  or 
misconduct  of  servants;  but  in  this  case  there  was  no  fire,  except 
in  the  stove  and  flue  where  there  ought  to  have  been,  and  the 
loss  was  occasioned  by  the  confinement  of  the  heat."  * 

So  damage  to  sugar  and  molasses  by  merely  the  explosion  of 
a  steam-boiler  in  a  sugar-house  is  held  in  Louisiana  not  to  be 
covered  under  a  policy  on  those  articles  against  fire.^ 

In  a  New  York  case,  the  underwriters  on  a  building  against 
loss  "by  or  by  reason,  or  by  means  of  fire,"  also  "liable  for  fire 
by  lightning,"  were  held  not  to  be  liable  for  the  loss  of  the  building 
by  its  being  demolished  and  shattered  to  pieces  by  lightning  with- 
out the  ignition  of  any  part  of  it.^  The  decision  in  this  case 
necessarily  turned  upon  the  meaning  of  the  term  "  fire,"  and  Mr. 
Justice  Jones,  in  his  very  able  statement  of  the  grounds  of  the 
judgment,  puts  it  upon  the  distinction,  in  the  policy  itself  and  in 
common  usage  and  in  scientific  treatises,  of  fire  from  lightning, 
which  latter,  although  like  a  match  it  may  kindle  a  fire,  yet  can- 
not be  understood  to  be  of  itself  fire. 

A  similar  judgment  has  been  given  by  Parker,  C.  J.,  and  his 
associates  in  New  Hampshire,  on  an  insurance  upon  a  dwelling- 
house  and  its  contents,  against  "  loss  by  fire,  whether  by  accident, 
lightning,  or  any  other  means,  payable  in  three  months  after  said 


1  Austin  V.  Drewe,  4  Camp.  360;  3  Babcock  v.  Montgomery  County 
Holt,  126;  6  Taunt.  436;  2  Marsh.  R.  Mut.  Ins.  Co.,  6  Barbour's  Sup.  Ct. 
130.  K  637. 

2  Millaudon  v.  New  Orleans  Ins. 
Co.,  4  La.  Annual  Reports,  15. 


64-4  RISKS   COVERED.  [CHAP.  XHI. 

property  should  be  burnt,  destroyed,  or  demolished  by  or  by  rea- 
son or  means  of  fire.''  Some  glass  and  crockery  were  broken, 
and  some  tin  ware  damaged  by  lightning,  and  some  wood  "work  of 
the  house  near  the  window  through  which  the  lightning  entered, 
as  if  exposed  to  a  flame,  but  it  did  not  appear  from  the  evidence 
as  stated,  that  there  had  been  actual  ignition.  Parker,  C.  J.  "  If 
the  damage  was  by  lightning  without  combustion  it  is  clearly  not 
within  the  terms  of  the  insurance."  A  new  trial  was  ordered  to 
settle  the  facts.^ 

It  has  been  held  in  New  York,  and  in  ^Missouri,  that  the  under- 
writers are  liable  for  the  loss  of  a  building  by  its  being  blown  up 
with  gunpowder  and  demolished  to  stop  a  conflagration  where  it 
would  have  been  soon  inevitably  burnt,  in  the  progress  of  the  fire, 
from  a  neighboring  building  already  in  flames.- 

The  doctrine  of  these  cases  seems  to  be,  that  damage  hy  water 
being  ihrou-n  upon  goods  in  extinguishing  a  Jire,  and  loss  by 
plunder  of  goods  removed  away  from  a  fire,  and  so  put  out  of 
the  control  of  the  assured,  are.  in  common  practice,  treated  as 
directly  incidental  or  consequent  to  the  fire,  and  covered  by  a  fire 
policy.^ 

In  an  analogous  case,  underwriters  against  fire  have  been  held 
liable  for  the  loss  of  a  subject  voluntarily  burnt  under  circumstan- 
ces in  which  it  was  on  the  point  of  instant  inevitable  destruction 
by  a  peril  insured  against.  As  in  the  case  before  Lord  Ellenbo- 
rough,*  of  a  vessel  burnt  by  the  master  and  crew,  to  prevent  its 
falling  into  the  hands  of  the  enemv.  Such  a  construction  is  sup- 
ported  by  the  grave  authority  of  Cliancellor  Kent,  who,  speaking  of 
fear  of  a  peril,  says,  '•'  If  the  danger  be  so  great  as  to  amount  almost 
to  a  certainty  of  capture,  it  become  a  restraint  in  contemplation 
of  the  policy.''  ^  The  maxim,  Causa  proxima  spectatur,  afibrds  no 
help  in  these  cases,  but  is  in  fact  fallacious,  for  if  two  causes  con- 


1  Kcnniston  v.  Merrimack  County  3  See  infra,  Xo.  1098  a. 

Mut.  Ins.  Co.  14  N.  Hamp.  R.  341.  ^  Gordon  v.  Rinimington,  1  Camp. 

2  City  Ins.  Co.  v.  Corlies,  21  Wend.  123. 

R.  307  ;  Phillips  r.  Protection  Ins.  Co.,  5  3  Com.  3d  ed.  203. 
U  ^lissouri  R.  220. 


SECT.  YII.]  LOSS   BY  FIRE.  645 

spire,  and  one  must  be  chosen,  the  more  scientific  inquiry  seems 
to  be,  whether  one  is  not  the  efficient  cause,  and  the  other  merely 
instrumental,  or  merely  incidental,  and  not  which  is  nearest  in 
place  or  time  to  the  consummation  of  the  catastrophe.^ 

1098.  Whether  underivriters  against  fire  are  responsible  for 
expenses  successfully  incurred  to  save  the  insured  property  from 
being  destroyed  by  fre  1 

Mr.  Dowdeswell  says  this  is  not  settled.^ 

In  a  Pennsylvania  case,  where  insured  goods  were  removed 
"  under  a  reasonable  apprehension  that  they  would  be  reached  by 
the  flames,"  from  the  fourth  tenement  on  one  side  in  the  same 
block,  in  the  great  fire  in  Pittsburgh  in  1845,  it  was  the  opinion 
of  the  Supreme  Court  of  that  State,  that  the  underwriters  were 
not  liable  for  the  damage  to  the  goods,  and  the  expense  of  remov- 
ing them.3 

They  have  been  held,  in  Illinois,  to  be  liable  in  such  a  case.^ 
And  this  is  clearly  the  more  equitable  construction,  and  it  comes 
within  the  doctrine  of  the  liability  of  underwriters  for  contribution 
for  jettison  on  marine  insurance.  So  a  loss  by  illicit  trade  is  held 
to  cover  expense  incurred  to  avoid  seizure  therefor.^  The  liability 
of  the  underwriters  in  these  and  similar  cases,  may  depend,  in 
some  degree,  upon  the  imminency  of  the  peril,  and  the  reasona- 
bleness and  expediency  of  the  measures  taken  ;  and  the  amount  of 
the  loss  may  be  aggravated  by  the  fact,  that  the  subject  is,  by  the 
direct  effect  of  the  peril,  put  out  of  the  control  and  protection  of 
the  assured  and  his  agents. 

The  expense  and  damage  incurred  in  such  case  for  the  benefit 
evidently  of  the  underwriters,  may  amount  to  a  greater  part  of  the 
value  of  the  subject.     It  seems,  therefore,  to  be  the   better   doc- 

J  See  infra,  No.  1131.  save  the  goods.     This  does  not,  how- 

2  Life  and  Fire  Ins.  109,  citing  Tin-  ever,  seem  to  make  the  liability  of  the 
dall  V.  Bell,  11  Mees.  &  W.  228.  underwriters  greater   than   under  a 

3  Hillier  v.  Alleghany  Ins.  Co.,  3  policy  having  no  such  clause.  So 
Penn.  R.  470.  held   in   Cincinnati.     Firemens'  Ins. 

4  Case  V.  Hartford  Fire  Ins.  Co.,  13  Co.  ?;.,May,  20  Ohio  R.  211. 
Illinois  R.  676.     The  policy  required  5  fUggingon  v.  Pomeroy,  11  Mass. 
of  the  assured  all  possible  diligence  to  R.  1 04. 


646  RISKS   COVERED.  [CHAP.  XIIL 

trine,  and  the  one  most  closely  analogous  to  the  jurisprudence  on 
the  subject  of  insurance  generally,  that, 

The  underwriters  are  liable  for  such  damage  and  expense  rea- 
sonably and  expediently  incurred,  as  being  directly  occasioned  by 
the  peril  insured  against. 

1098  a.  The  underwriters  are  liable  for  damage  to  the  subject 
and  expense  directly  incidental  or  consequent  to  the  fire  :  as  da- 
mage to  the  insured  goods  by  water  thrown  on  to  extinguish  the 
fire,  and  the  expense  of  removing  the  insured  property  from  the 
fire.     This  liability  has  been  juridically  recognized.^ 

So  they  are  liable  for  loss  by  plunder,  where  a  removal  of  insur- 
ed goods  out  of  the  control  of  the  assured,  is  directly  incidental  or 
consequent  to  a  peril  insured  against :  as  in  case  of  capture,^  or  fire.^ 


SECTION    VIII.       PERILS    OF    THE    SEAS. 

1099.  Perils  of  the  seas,  lohich  constitute  a  part  of  the 
risks  in  almost  every  marine  jJoHcy,  comprehend  those  of  the 
winds,  loaves,  lightning,  rocks,  shoals,  collision,  and,  in  general, 
all  causes  of  loss  and  damage  to  the  property  insured,  arising  from 
the  elements,  and  inevitable  accidents,  though  sometimes  con- 
sidered not  to  include  capture  and  detention.^ 

A  policy  against  these  perils  accordingly  covers  damage : 

By  being  fired  into  through  mistake  in  being  taken  for  an  enemy :  ^ 

1  Per  Grler,  J.,  Hillier  v.  Alleghany  Story  considers  "  dangers  of  the  seas," 
]\Iut.  Ins.  Co.,  3  Penn.  R.  (by  Barr,)  in  the  bill  of  lading,  to  be  equivalent 
470.  to  "perils  of  the  seas,"  in  a  policy  of 

2  Magoun  v.  New  England  IMut.  insurance.  The  Schooner  Reesidc, 
Ins.  Co.,  1  Story's  II.,  C.  C.  of  U.  S.,  2  Sumner's  R.  5G7. 

157.  5  Cullea  v.  Butler,  1  Stark.  II,  138 ; 

3  Case  V.  Hartford  Fire  Ins.  Co.,  13  S.  C,  5  M.  &  S.  461 ;  S.  C,  Park,  401. 
Illinois  R.  07G;  Webb  v.  Protection  This  case  is  put  upon  the  general 
Ins.  Co.,  14  Missouri  R.  3,  where  the  words,  "all  other  perils."  At  the  trial 
underwriters  were  held  to  be  exonc-  before  Lord  Ellenborough,  he  said, 
rated  under  the  exception  of  theft,  this  loss  was  by  a  "  peril  on  the  seas, 
which  was  impliedly  recognizing  their  not  of  the  seas."  The  distinction  is 
liability  without  this  exception.  fanciful,  since  it  would  put  winds  and 

4  Marsh.    Ins.,   487.     I\Ir.   Justice  lightning  out  of  the  class  of  perils  of 


SECT.  VIII.] 


PERILS   OF   THE   SEAS. 


G47 


And  by  the  explosion  of  a  steamboat  boiler :  ^ 

And  by  taking  the  ground  in  consequence  of  the  falling  of  the 
tide  :  2 

And  by  corrosion  of  metals  in  consequence  of  actual  con- 
tact of  sea-water  occasioned  by  a  leak  caused  by  the  perils  in- 
sured against,^  and  not  by  mere  general  dampness/  or  by  bad 
stowage :  ^ 

And  by  a  ship  being  blown  over  at  the  time  of  hauling  it  up  on 
a  marine  railway  :  ^ 

And  by  fire  :  "^ 

And  damage  to  the  vessel  or  cargo  insured,  by  collision  with 
other  vessels,  whether  without  any  fault  or  through  carelessness :  ^ 

And  damage  by  fault  of  the  master  and  mariners  of  the  vessel 
insured  :  ^ 

Or  by  the  fault  of  the  master  and  mariners  of  another  vessel.^" 

There  is'  no  question  that  collision  is  a  peril  of  the  seas,  and 
that  underwriters  are  liable   for   damage  thereby  to   the   insured 


the  seas,  as  being  those  of  the  atmos- 
phere, &c.  In  giving  the  opinion  of 
the  court,  the  directly  retracting  of 
the  remark  made  at  the  trial  is  avoid- 
ed by  putting  the  decision  upon  the 
general  clause,  and  thus  forcing  this 
clause  beyond  its  usual  construction. 

1  Perrin's  Adm'rs  v.  Protection  Ins. 
Co.,  11  Ohio  Pt.  147 ;  Citizens'  Ins.  Co. 
V.  Glasgow,  9  Missouri  K.  406.  The 
phrase  "  perils  of  the  river,"  is  substi- 
tuted in  the  trade  on  the  Mississippi 
and  Ohio,  for  that  of  "perils  of  the 
seas,"  in  maritime  policies. 

2  Fletcher  v.  Inglis,  2  B.  &  Aid.  315. 

3  Cogswell  V.  Ocean  Ins.  Co.,  18  La. 
R.  84,  which  was  the  case  of  a  corro- 
sion of  zinc. 

4  Baker  v.  Manufacturers'  Ins.  Co., 
Mass.  Sup.  Ct.,  Suffolk,  1851. 

5  Montgomery  v.  Shaw,  Sup.  Ct.  of 
Louisiana,  1851. 


<5  Ellery  v.  New  England  ]\Iar.  Ins. 
Co.,  8  Pick.  14,  as  being  ojusdem  ge- 
neris with  the  perils  specifically  enu- 
merated. 

7  This  would  be  the  construction  no 
doubt,  though  the  peril  were  not  spe- 
cifically insured  against. 

8  Buller  V.  Fisher,  3  Esp.  67;  Pe- 
ters r.  Warren  Ins.  Co.,  1  Story's  R, 
463  ;  S.  C,  3  Sumner,  389 ;  S.  C,  14 
Peters's  Sup.  Ct.  R.  99  ;  Caldwell  v. 
St.  Louis  Perpetual  Ins.  Co.,  1  La. 
Annual  R.  85,  which  was  a  case  of 
injury  to  the  stern  boat  of  a  steam- 
boat in  river  navigation. 

9  Supra,  s.  2,  No.  1049. 

10  Smith  ?;. "Scott,  4  Taunt.  126.  The 
marine  ordinances  of  various  countries 
and  earlier  treatises  contain  many  pro- 
visions on  this  subject  of  collision. 
Pothier,  Ins.,  n.  50 ;  Ord.  Copenh.. 
art.  14. 


648  RISKS    COVERED.  [CHAP.  XIU. 

vessel,  but  it  has  been  made  a  question  whether  the  underwriters 
are  hable  to  indemnify  the  assured  for  the  amount  which  he  has 
been  hable  to  pay  to  the  owners  of  another  vessel,  for  damage 
done  to  it  by  collision  with  his  own,  which  question  is  subsequently, 
considered.^ 

Losses  by  the  inevitable  operation  of  the  elements,  or  any  vis 
major  insured  against,  happening  .in  port,  are  usually  classed  as 
perils  of  the  seas ;  but  Mr.  Justice  Story  considered  theft  without 
violence,  and  embezzlement  "in  port,"  as  not  coming  within 
that  description."^ 

Damage  to  the  ship,  occasioned  by  its  taking  the  ground  in  a 
harbor  when  the  tide  fell,  was  however  held  to  be  a  loss  by  "  perils 
of  the  seas."^ 

But  Lord  Kenyon  ruled  that  the  insurers  against  these  perils 
were  not  liable  for  the  damage  to  a  ship  which  was  bilged  by 
being  hove  out  to  repair,  not  being  strong  enough  .  to  bear  the 
strain  ;  ^  though  the  ground  of  the  ruling  does  not  appear.  And 
Sir  James  Mansfield  and  his  associates  of  the  English  Common 
Pleas,  held  that  w^here  a  vessel  hove  out  for  repairs  was  injured  by 
reason  of  the  blocks  with  which  it  was  propped,  being  removed 
by  force  of  the  tide,  the  underwriters  were  not  liable  for  the  da- 
mage as  being  by  a  peril  of  the  seas,  because  the  vessel  was  on 
land,^  a  reason  inconsistent  with  other  cases.^ 

In  respect  to  perils  of  the  seas,  it  is  frequently  difficult  to  dis- 
tinguish what  DEGREE  of  the  peril  brings  it  within  the  stipulation 


1  Infra,  No.  1137  a,  1416-1419.  6  See  Fletcher  v.  Inglis,  just  cited, 

-  King  f.  Shepherd,  3  Story's  R,  and  Ellery  v.  Xew  England  Mar.  Ins. 

340.  Co.,  8  Pick.  (Mass.)  R.  14 ;  and  the 

3  Fletcher  r.  Inglis,  2  B.  &  A.  315.  case  of  loss  by  the  tackle  and  furni- 

*  Rowcroft  V.  Dunsmore,  3  Taunt  ture  of  the  ship  being  burnt  in  a  store- 

228.     Lord  Kenyon  is  said  to  have  house  (Bank  Saul)  at  Canton,  -while 

remarked  that  it  vras   an   accident;  the   ship   was    under  repairs,   being 

this  could  not,  however,  be  any  rea-  stored   there   according  to  the  usual 

son  against  the  liability  of  the  under-  practice  in  the  voyage.    Felly  v.  Royal 

writers.  Exch.  Ass.  Co.,  1  Burr.  341. 

5  Thompson  r.  Whitmorc,  3  Taunt. 
227. 


SECT.  VIII.]  PERILS    OF   THE    SEAS.  649 

of  indemnity  ;  for,  as  we  have  already  seen,  the  insurers  only  stip- 
ulate to  make  indemnity  for  the  extraordinary  consequences  of  the 
unusual  and  extraordinary  operation  of  these  perils.  The  perils 
of  the  seas  include  more  especially  the  danger  from  the  winds  and 
waves,  yet  the  underwriters  are  not  understood  to  promise  indemnity 
for  the  merely  ordinary  injury  and  gradual  wearing  out  of  the  sails 
and  rigging,  by  use  and  the  constant  action  of  the  elements.^ 

If  a  vessel  at  sea  is  not  heard  from  for  a  long  time,  it  is  pre- 
sumed to  have  perished  by  perils  of  the  seas.^  By  some  policies 
it  is  provided,  that  a  vessel  not  heard  from  for  a  certain  time 
shall  be  presumed  to  have  been  lost.  But  if  the  policy  contains 
no  provision  of  this  sort,  the  length  of  time  which  will  be  the 
ground  of  this  presumption  will  evidently  depend  upon  the  dis- 
tance and  particular  circumstances.^ 

1100.  In  respect  to  damage  by  rats  and  vermin,  it  seems  to  he 
implied  by  the  expressions  of  the  judges  in  some  instances,  that  it 
does  not  arise  from  the  kind  of  perils  insured  against.  But  the 
doctrine  against  the  liability  of  the  insurers  for  this  species  of 
loss  is  most  frequently  put  upon  the  grounds  that  it  is  not  an  ex- 
traordinary loss,  and  also  thai  it  happens  through  the  fault  of  the 
assured,  or  that  of  his  agents  which  is  imputable  to  him. 

A  case  was  decided  in  the  time  of  Chief  Justice  Lee,  respect- 
ing a  claim  for  damages  for  the  injury  done  to  goods  by  rats. 
The  goods  were  injured  in  this  manner,  while  they  were  in  the 
possession  of  a  hoy-man,  for  the  purpose  of  being  transported  from 
one  port  to  another  in  England.  It  was  held  that  the  hoy-man 
was  answerable  for  the  damage,  upon  the  principle  that  this  was 
not  a  loss  by  an  act  of  God  or  the  king^s  ememies,  and  the  hoy- 
man  was  answerable,  as  a  common-carrier,  for  damage  to  the 
goods  arising  from  every  other  cause."^  And  its  not  being  considered 
to  be  an  inevitable  accident  is  in  favor  of  the  rule  that  under- 
writers are  not  liable  for  it. 

1  See  infra,  No.  1105.  3  Gordon  v.  Bowne,  2  Johns.  150. 

2  Green   v.   Brown,   2    Str.  1199;        4  Dale  v.  Hall,  1  Wils.  281. 
Newby  v.  Read,  Park,  106,  7th  ed.; 

Twemlow  v.  Oswin,  2  Camp.  85. 
VOL.  I.  55 


650  RISKS  COVERED.  [CHAP.  XHI. 

According  to  the  old  books  and  sea-laws,  the  owners  of  the  ship 
are  not  liable  for  damage  to  the  goods  from  this  cause,  provided 
the  captain  takes  a  cat  on  board,  at  the  beginning  of  the  voyage. 
This  supposes  that  the  loss  may  be  inevitable,  and  that  it  is  not 
in  all  cases  owing  to  the  negligence  of  the  master  and  crew. 

Emerigon  ^  considers  the  insurers  not  to  be  answerable,  in  gene- 
ral, for  this  sort  of  damage,  because  it  might  be  prevented  by 
proper  care.  He  cites  many  authors  as  being  of  his  opinion,  who 
all  seem  to  adopt  the  principle  of  the  old  sea-laws,  that  the  own- 
ers of  the  ship  are  answerable  for  this  damage,  unless  the  captain 
provides  against  it.  To  this  effect  they  cite  the  rule  of  the  Civil 
Law,  that,  if  cloths  intrusted  to  a  fuller  are  injured  by  mice,  while 
in  his  possession,  he  must  make  good  the  damage.^  Straccha  ^ 
considers  the  insurers  not  to  be  liable  for  damage  by  rats  or  mice, 
on  the  ground  that  it  might  be  prevented  by  proper  care  and  dili- 
gence. 

A  case  on  this  subject  came  before  the  Supreme  Court  of 
Pennsylvania,  upon  a  policy  on  a  vessel  at  and  from  St.  Domingo 
to  the  United  States.  After  sailing,  she  proved  to  be  leaky,  and 
was  compelled  to  put  back  to  Cape  St.  Francois,  where,  on  a 
survey,  the  timbers  were  found  to  have  been  very  much  injured 
by  the  rats.  The  case  was  elaborately  argued  on  both  sides.  It 
was  the  opinion  of  the  court,  that  this  was  among  those  casualties 
comprehended  under  perils  of  the  seas,  and  for  which  the  insurers 
are  liable."* 

A  similar  case  came  before  Lord  Ellenborough.  Goods  being 
insured  for  a  voyage  from  London  to  Honduras,  the  vessel,  in  the 
course  of  the  voyage,  was  detained  at  Antigua  by  the  sickness  of 
the  crew,  and  while  she  lay  there  the  rats  ate  holes  in  her  tran- 
soms and  bottom,  whereby  she  was  rendered  unfit  for  proceeding 
upon  the  voyage,  and  the  cargo  was  sold  at  Antigua.  Lord 
Ellenborough  held  that  this  did  not  constitute  a  loss  for  which  the 
underwriters  on  the  goods  against  perils  of  the  seas  are  liable.^ 

1  Chap.  12,  8.  4.  4  Garrigues  v.  Coxc,  1  Binn.  592. 

2  D.  ID.  2,  13.  C.  5  Hunter  v.  Potts,  4  Camp.  203. 

3  De  Assec.  817,  Part  4,  n.  31. 


SECT.  VIII.]  PERILS   OF   THE   SEAS.  651 

It  has  been  held  in  New  York,  by  Savage,  C.  J.,  and  his  asso- 
ciates, that  damage  to  bear-skins  by  rats,  on  a  passage  from  New 
Orleans  to  New  York,  was  not  necessarily  a  "  peril  of  the  seas  " 
within  the  meaning  of  those  terms  in  the  bill  of  lading  ;  but  that 
its  being  so  or  not  must  depend  upon  due  diligence  on  the  part  of 
the  master  and  mariners  to  prevent  it.^ 

This  is  plainly  a  question  for  the  jury,  and  I  infer,  on  the 
whole,  that 

The  insurers  may  he  liable  for  this  species  of  damage  where  it 
happens  on  a  voyage,  notioithstanding  proper  vigilance  and  pre- 
cautions against  it. 

1101.  It  has  been  held  that  the  destruction  of  the  vesseVs  bot- 
tom by  ivorms  is  not  a  peril  of  the  seas. 

A  case  came  before  Lord  Kenyon,  relating  to  a  vessel  so  de- 
stroyed on  the  coast  of  Africa.  A  special  jury  were  of  opinion, 
"  that  this  was  not  a  loss  within  the  terms  of  "  perils  of  the  seas," 
in  policies  of  insurance  ;  and  Lord  Kenyon  was  of  this  opinion." 

Mr.  Justice  Livingston,  alluding  to  this  case,  said :  "I  do  not 
mean  to  be  understood  as  subscribing  to  the  opinion  of  Lord  Ken- 
yon." ^ 

But  his  opinion  has  been  adopted  in  Massachusetts.  A  ship's 
bottom  was  injured  by  worms  during  the  time  of  her  detention  by 
an  embargo  at  Cape  St.  Francois.  In  respect  to  a  claim  for  in- 
demnity against  the  insurers  for  this  damage,  the  court,  speaking 
of  the  preceding  case,  said  it  was  decided  upon  the  ground,  that 
the  loss  was  like  the  wearing  and  natural  decay  of  the  vessel.'* 

Some  persons,  conversant  in  the  practice  of  insurance,  consider 
insurers  to  be  exempted  from  liability  for  this  species  of  loss,  on 
the  ground  that  it  arises  from  the  fault  of  the  assured.  It  is  a  kind 
of  injury  which  occurs  only  in  warm  climates,  and  they  say  that 
a  ship  is  not  fit  to  be  employed  in  those  climates,  unless  she  is 


1  Aymar  v.  Astor,  6  Cowen,  266.  R.  420.     In  a  common  printed  form 

2  Rohl  V.  Parr,  1  Esp.  445.  of  policy  used  in  Charleston,  S.  C,  it 

3  Depeyster  v.  Columbian  Ins.  Co.,  is  provided  that  the  insurers  shall  not 
2  Caines,  85.  be  answerable  for  this  species  of  da- 

•*  Martin  v.  Salem  Ins.  Co.,  2  Mass.  mage. 


652  RISKS  COVERED.  [CHAP.  XHI. 

secured  by  a  copper  sheathing  against  this  kind  of  damage.  But 
a  distinction  has  been  suggested  in  this  respect,  which  seems  to  be 
very  reasonable,  upon  the  supposition  that  the  underwriters  are 
exonerated  from  this  risk,  upon  the  ground  above  mentioned.  It 
is  suggested,  that  if  the  copper  sheathing  is  torn  off  by  stranding, 
or  other  perils  of  the  seas  which  are  insured  against,  and  in  conse- 
quence of  this  accident  the  vessel's  bottom  is  eaten  by  worms,  the 
insurers  are  liable  for  the  damage. 

Upon  the  doctrine  already  stated,  that  insurers  are  not  liable 
for  ordinary  damage,  the  Supreme  Court  of  the  United  States  has 
held,  that,  in  seas  where  worms  ordinarily  assail  the  bottom  of 
ships,  this  damage  is  not  a  loss  by  perils  of  the  seas,  within  the 
meaning  of  the  policy.^ 

1102.  The  expense  and  loss  attending  a  mere  detention  and 
delay,  on  account  of  perils  of  the  seas,  at  a  port  in  the  course  of 
the  voyage,  must  be  borne  by  the  owner  of  the  ship,  though  the 
delay  continues  for  a  long  time. 

On  a  voyage  from  a  port  in  the  Baltic  to  London,  the  ship  was 
unexpectedly  detained  by  the  ice,  and,  instead  of  proceeding  on 
the  voyage  immediately,  could  not  sail  until  the  following  season. 
This  was  considered  to  be  one  of  those  ordinary  inconveniences 
and  interruptions  of  the  voyage,  the  expense  of  which  must  be 
borne  by  the  owner.^ 

1103.  If  the  vessel  goes  out  of  the  course  of  the  voyage  for 
the  purpose  of  refitting  and  repairing  damage  sustained  from 
the  perils  insured  against,  it  is  held  in  the  United  States  that 
this  is  to  be  done  at  the  charge  of  the  iiisurers. 

But  though  the  delay  and  departure  from  the  course  are  con- 
sidered to  be  extraordinary  occurrences,  for  which  the  insurer  is 
bound  to  make  indemnity,  a  distinction  is  made  between  what  is 
ordinary  in  the  expense  and  damage  occasioned  by  the  delay,  and 
so  to  be  borne  by  the  owner  of  the  vessel,  and  what  is  extraordi- 
nary, and  for  which  the  insurer  is  answerable.     The  owner  loses 


'  Hazard  v.  New  England  INIar.  Ins.        2  Evcrth  v.  Smith,  2  Maulc  &  Sclw. 
Co.,  1  Sumner's  R.  218;  S.  C,  8  Tc-     278. 
tcr's  Sup.  Ct.  R.  557. 


SECT.  VIII.]  PERILS    OF   THE    SEAS.  653 

the  earnings  of  the  vessel  during  the  time  of  its  detention,  but  he 
has  no  claim  against  the  insurer  on  this  account. 

1104.  In  respect  to  the  expense,  on  account  of  the  wages  and 
provisions  of  the  crew,  during  the  period  of  voluntary  departure 
from  the  course,  and  delay,  for  the  purpose  of  refitting,  the  rule 
in  the  United  States,  sanctioned  by  all  the  American  courts,  is 
different  from  that  in  Great  Britain. 

In  one  case,^  in  which  the  ship  put  into  Nice  in  distress,  where 
the  captain  discharged  the  crew  and  then  hired  them  to  assist  in 
repairing  the  ship,  the  court  in  England  considered  their  wages, 
while  so  employed,  as  constituting  a  part  of  the  loss  within  the 
policy,  upon  the  ground  that  "they  did  not  work  as  sailors,  but  as 
common  workmen."  But  the  expense  of  wages  and  provisions  of 
the  crew,  as  such,  during  a  delay  for  repairs,  is  very  distinctly 
and  explicitly  considered  in  practice,^  and  held  by  the  courts  in 
England,  to  he  a  charge  ^ipon  the  oivner,  and  not  a  part  of  the 
loss  within  the  policy,  either  upon  the  ship  or  freight. 

It  seems  that  formerly  some  insurers  in  England  were  of  a 
different  opinion,''  and  on  the  continent  of  Europe  these  charges 
appear  to  be  more  generally  considered  as  part  of  the  loss  within 
the  policy,  in  case  of  a  vessel's  putting  into  a  port  to  refit ;  though 
some  writers  doubt  the  propriety  of  this  rule.  Adrian  Verwer 
says:  "Why  should  the  victualling  and  men's  wages  be  deemed  a 
general  average,  any  more  than  the  interest  of  the  money,  and  the 
damage  caused  to  the  cargo  by  the  delay  ? "  ^  The  French  Code 
makes  the  insurers  liable  for  this  charge  only  in  case  of  the  ves- 
sel's being  chartered  by  the  month.^ 

In  the  United  States,  the  rule  is  general  and  uniform,  that  the 
underwriters  are  in  this  case  liable  for  the  expense  of  wages  and 
provisions.^  One  reason  of  the  rule  seems  to  be,  that  the  extra- 
ordinary circumstances  under  which  this  expense  is  incurred  may 


1  Da  Costa  v.  Newnliam,  2  T.  E.407.  4  i  Magens,  68. 

2  Stevens,  c.  1,  a.  2,  s.  [e] ;  Plum-  5  Code  de  Commerce,  a.  403. 

mer  v.  Wildman,  3  M.  &  S.  482.  6  4  Mass.  R.  548 ;  8  Johns.  307 ;  2 

3  Beawes,  tit.  Salvage,  Average, &c.,  Caines,  263;  Id.  274. 
Vol.  I.  p.  157 ;  1  Mag.  67,  s.  57. 

55* 


g54  RISKS    COVERED.  [CHAP.  XIII. 

be  supposed  to  change  the  nature  and  character  of  these  expenses, 
and  to  render  the  insurers  liable  for  them  upon  the  same  principles 
on  which  they  are  liable  for  any  loss.  If  the  loss  is  paid  upon 
this  ground,  it  shows  that  the  construction  put  upon  these  expenses, 
as  being  ordinary  and  like  the  wear  and  tear  and  decay  of  the  ves- 
sel, or  otherwise,  is  different  in  England  and  the  United  States. 
But  supposing  these  expenses  not  to  be  considered  in  the  United 
States  of  the  kind  for  which  insurers  are  liable,  according  to  the 
general  principles  by  which  their  liability  is  usually  determined, 
still  there  is  a  reason  for  making  an  exception  in  this  case.  A 
vessel  quits  her  course  to  refit,  that  she  may  prosecute  the  voyage 
with  greater  safety,  and  it  is  evidently  for  the  general  interest  of 
the  insurers,  as  well  as  the  assured,  to  remove,  as  much  as  possible, 
every  discouragement  to  the  use  of  precautions  and  all  practicable 
means  for  the  safe  prosecution  of  the  voyage,  and  insurers  may 
upon  this  ground  of  expediency  assume  a  liability  for  these  ex- 
penses. 

The  liability  of  the  insurers  for  wages  and  provisions  in  case  of 
detention  seems  to  be  very  similar  to  the  same  charges  in  case  of 
delay  for  the  purpose  of  refitting,  as  far  as  this  liability  depends 
upon  the  extraordinary  circumstances  under  which  the  expense  is 
incurred,  since  a  detention  by  capture,  or  an  embargo,  is  as  extra- 
ordinary, and  as  much  out  of  the  usual  course  of  things,  as  a  delay 
to  refit.  These  two  cases  are  considered  similar  in  the  Marine 
Law  of  France.!  The  liability  of  the  insurers  for  this  expense 
will  be  considered  subsequently. 

1105.  Underwriters  are  liahle  only  for  extraordinary  damage 
to  the  shijj,  as  distinguished  from  ordinary  wear  and  tear  and 
deterioration  by  time. 

"  Were  insurers,"  says  Magens,^  "  obliged  to  pay  for  every  cable 
and  rope  that  breaks,  or  for  every  sail  that  splits,  or  blows  to 
pieces,  there  would  be  no  other  way  of  insuring  ships,  but  free  of 
all  particular  average." 

Where  a  vessel  is  wrecked  ;  or  damaged  by  stranding  ;  or  rolls 


1  Code  de  Commerce,  ut  supra.  on  Avci-age,  c.  3  ;  Bencckc  &  Stevens 

2  Chap.  1,  p.  52,  s.  51,  cited  Stevens     by  Phil.,  p.  3G6. 


SECT.  VIII.]  PERILS   OF  THE   SEAS.  G55 

away  her  masts  in  a  rough  sea ;  or  has  them  carried  away  in  a 
gale  ;  there  is  no  question  of  the  liability  of  the  underwriters. 
So  if,  to  escape  from  some  imminent  peril  that  is  insured  against, 
it  is  necessary  to  cut  away  the  mast,  or  cut  a  cable,  or  throw  over- 
board a  part  of  the  cargo,  the  circumstances  and  the  sacrifice, 
being  extraordinary,  constitute  a  valid  claim  for  indemnity.  But 
if  a  cable  is  worn  off  while  the  vessel  lies  at  the  usual  anchorins- 
place,  and  without  any  extraordinary  action  of  the  perils  insured 
against,  or  if  a  sail  is  split  in  the  ordinary  course  of  navigation,  it 
is  the  owner's  loss. 

It  is  difficult  to  give  examples  by  way  of  illustrating  the  distinc- 
tion of  what  is  ordinary  from  what  is  extraordinary,  in  losses  and 
damages  of  this  description,  without  getting  upon  disputed  ground. 
But  the  only  satisfactory  mode  of  illustrating  this  distinction  is  by 
instancing  actual  adjustments  of  losses,  since  the  common  usage 
and  understanding  among  practical  men  is  undoubtedly  the  best 
authority  upon  this  subject. 

In  some  instances,  as  where  the  timbers  of  the  ship  are  broken, 
the  damage  done  is  a  sufficient  proof  of  the  extraordinary  degree 
of  the  operation  of  the  peril.  It  can  in  general  be  pretty  satisfac- 
torily determined  whether  an  injury  to  the  body  of  the  ship  is  a 
proper  subject  of  indemnity,  the  question  of  most  frequent  occur- 
rence in  regard  to  such  damage  being,  whether  the  extent  of  the 
injury  does  not  rather  prove  the  ship  to  have  been  unseaworthy, 
than  that  the  peril  was  extraordinary.  But  if  it  be  assumed  that 
the  ship  was  seaworthy,  it  is  in  general  not  difficult  to  determine 
whether  an  injury  of  this  kind  is  a  loss  within  the  policy. 

It  is  sometimes  a  subject  of  doubt,  whether  the  damage  to  the 
sheathing  is  to  be  repaired  at  the  expense  of  the  insurers.  The 
sheathing  will  necessarily  be  destroyed  and  worn  off  by  use,  and 
damage  of  this  sort  ought  to  be  considered  ordinary,  and  fall  upon 
the  owner,  except  in  cases  of  the  vessel's  striking,  or  where  some 
other  injury,  sustained  by  the  vessel  at  the  same  time  shows  that 
it  was  exposed  to  great  violence.  Injuries  of  this  sort,  which  are 
to  be  considered  only  the  wear  and  tear  of  the  ship,  are  distin- 
guished from  those  which  constitute  a  loss  within  the  policy,  by 
taking  into  consideration  the  age  and   strength   of  the  sheathing. 


656  RISKS    COVERED.  [CHAP.  XHI. 

and  all  other  circumstances  which  show  to  how  great  a  degree  of 
violence  the  vessel  has  been  exposed. 

The  damage  to  the  upper  ivorks  of  the  vessel  is  frequently  the 
subject  of  particular  average,  and  would  be  more  frequently  so, 
did  not  the  amount  of  this  species  of  damage  often  come  within 
one  of  the  exceptions  of  the  policy.  If  any  part  of  the  upper 
works  is  carried  away,  or  broken  in  such  a  manner  as  to  make  a 
specific  injury,  which  is  the  proper  subject  of  repairs,  it  is  always 
considered  a  loss  within  the  policy,  unless  it  falls  within  the  excep- 
tion of  losses  under  three  or  five  per  cent. 

The  same  rule  applies  to  the  masts  and  spars.  If  a  mast  is 
sprung,  or  if  spars  are  carried  away  or  broken,  the  fact  of  their 
being  so  is  usually  considered  a  sufficient  proof  of  a  degree  of  vio- 
lence against  which  the  insurers  undertake  to  make  indemnity. 

The  boat  is  considered,  to  the  purposes  of  insurance,  to  be  a 
part  of  the  ship.^  If  a  boat  is  ivashed  overboard,  it  is  considered  to 
be  a  species  of  loss  that  is  insured  against,  unless  the  accident  hap- 
pens through  the  fault  of  the  captain  and  crew.  If  a  boat  lashed 
upon  deck  is  washed  overboard,  all  insurers  agree  that  this  is  one 
of  the  kinds  of  loss  insured  against. 

Mr.  Stevens  says  it  is  the  same  if  the  boat  is  "  properly  lashed 
to  the  quarters  J^  ^  But  whether  a  boat  may  be  "  properly  "  lashed 
in  this  situation  seems  to  depend  upon  the  number  of  boats  that  it 
is  necessary  to  carry,  and  upon  the  size  and  employment  of  the 
vessel.  The  employment  of  whaling  ships  makes  it  necessary  to 
carry  the  boats  on  the  outside  of  the  ship,  and  no  objection  is 
made  to  paying  for  a  boat,  which  is  lost  on  a  voyage  of  this 
description,  on  account  of  its  being  carried  in  this  situation.  Men- 
of-war  and  large  merchant-ships  carry  boats  at  the  stern  and  on 
the  quarters,  but  the  former  situation  is  said  to  be  much  the  less 
exposed  of  the  two.  In  regard  to  merchant-vessels  generally, 
however,  if  a  boat  fastened  to  the  stern-davits  is  damaged  or  lost, 
by  whatever  degree  of  violence  of  the  waves,  it  is  the  more  gen- 
eral opinion  of  writers  and  practical  insurers,  that  the  loss  cannot 


1  Stevens,  Part  I.  c.  3,  a.  4  ;  Be-        2  p^-t  I.  c.  3,  a.  5  ;  Bcnccke  v.  Stc- 
ncckc  &  Stevens  by  Phil.,  p.  309.  vens  by  Pliil.,  p.  370. 


SECT.  VIII.]  PERILS   OF   THE   SEAS.  657 

be  claimed  under  the  policy ,i  this  being  said  not  to  be  a  proper 
and  safe  situation  of  the  boat.  Some  insurers  adhere  to  this  rule 
strictly  in  practice.  Others  pay  for  a  boat  thus  fastened,  out  of  a 
willingness  to  put  a  liberal  construction  upon  their  contract,  in 
favor  of  the  assured  ;  though  they  think  the  risk  on  a  boat  so  car- 
ried is  greater  than  if  it  were  lashed  on  deck,  and  that  it  is  the 
fault  of  the  master  to  carry  it  in  this  manner. 

But  others  make  no  objection  to  the  payment  of  the  loss  in  such 
a  case,  because  they  say  that  it  is  convenient  in  general  to  carry 
a  boat  at  the  stern,  which  may  be  readily  lowered  to  save  a  man 
who  may  be  washed  overboard,  or  to  take  up  any  thing  that  may 
be  dropped  overboard.  The  loss  of  a  boat  so  carried  by  ves- 
sels navigating  the  Mediterranean,  was  formerly  paid  for  without 
objection,  because  the  carrying  of  the  boat  in  this  situation  often 
facilitated  the  escape  of  the  crew  in  case  of  the  capture  of  the 
vessel  by  corsairs.^ 

In  a  case  on  a  policy  in  the  Supreme  Court  of  Massachusetts, 
evidence  being  introduced  on  both  sides  of  the  question,  whether 
it  was  proper  in  a  West  India  voyage  to  carry  a  boat  at  the  stern, 
slung  on  the  davits,  the  court  considered  the  burden  to  be  upon 
the  underwriters  to  show  that  it  was  an  improper  place  to  carry 
the  boat,  and  that,  by  the  evidence  in  that  case,  this  did  not  ap- 
pear to  be  an  improper  way  of  carrying  the  boat.^ 

It  is  the  most  difficult  to  distinguish  what  is  wear  and  tear,  and 
decay,  from  the  damage  which  constitutes  a  loss,  in  the  case  of 
sails,  rigging,  cables,  and  anchors.  If  the  sails  are  necessarily 
cut  away  in  order  to  save  the  masts  or  yards,  and  for  the  general 
safety,  or  a  cable  is  cut  or  slipped  for  the  purpose  of  escaping  from 
•an  impending  peril,  which  is  insured  against,  or  a  hawser  is  used 
to  secure  a  temporary  rudder,  or  to  supply  the  place  of  a  parted 
shroud,  or  sails  and  ropes  are  used  for  the  purpose  of  stopping  a 
leak,  though  the  thing  sacrificed  is  old  and  would  soon  have  been 
worn  out  and    destroyed    by  use,  yet  the  voluntary  sacrifice  of  it 


1  Stevens,  ut  supra.  3  pijiH  y.  Ocean  Ins.  Co.,  21  Pick. 

2  1  Emerigon,  624,  c.  12,  s.  41.  472. 


658  RISKS    COVERED.  [CHAP.  XIII. 

gives  a  valid  claim  against  the  insurers  for  compensation  according 
to  its  value. 

But  where  the  damage  or  loss  is  not  voluntary,  it  is  difficult,  in 
many  instances,  to  determine  whether  it  ought  to  fall  upon  the 
owner  of  the  vessel  or  the  underwriter.  The  parting  of  a  rope  or 
cable,  or  the  splitting  of  a  sail,  is  not  in  itself  necessarily  a  proof 
of  the  extraordinary  operation  of  the  perils  of  the  seas,  for  this  will 
happen  from  use  and  decay  in  the  most  favorable  weather,  and 
under  the  most  forturnate  circumstances.  Damage  or  loss  of 
this  sort,  therefore,  commonly  belongs  to  the  owner  of  the  vessel 
to  bear,  and  does  not  constitute  the  ground  of  any  claim  against 
the  insurer,  unless  it  takes  place  out  of  the  common  course  of 
things,  or  appears  to  be  the  effect  of  the  unusual  and  violent  op- 
eration of  a  peril  insured  against. 

If  a  vessel  at  her  port  of  destination,  or  any  port  in  the  due 
course  of  the  voyage,  and  without  any  gale  or  an  unusually  rough 
sea,  being  at  anchor  on  a  "  foul  "  or  rocky  bottom,  has  her  cable 
chafed  off,  some  say  it  is  the  owner's  loss  as  a  part  of  the  wear 
and  tear ;  others  consider  it  a  loss  within  the  policy,  as  being  an 
extraordinary  specific  damage,  which  could  not  have  been  avoided. 

A  vessel  which  was  insured  against  capture  and  perils  of  the 
seas,  being  captured  on  suspicion  of  having  enemies'  goods  on 
board,  and  carried  into  Plymouth,  was  anchored  by  the  prize- 
master  in  the  outer  harbor  on  a  "  foul  "  bottom,  but  where  vessels 
frequently  anchor.  The  cable  was  chafed  off,  and  the  anchor 
thereby  lost,  though  the  weather  had  not  been  boisterous,  or  the 
sea  remarkably  rough.  The  vessel  was  released,  and  pursued  her 
voyage.  This  loss  was  paid  without  objection  by  the  insurers; 
though  it  possibly  might  not  have  been,  if  the  vessel  had  gone  to 
Plymouth  in  the  regular  course  of  the  voyage,^  but  the  being  taken 
out  of  the  course  by  one  of  the  perils  insured  against,  and  the  ex- 
traordinary circumstances  of  the  case,  were  considered  as  render- 
ing this  damage,  without  any  doubt,  a  loss  within  the  policy. 

Where  the  cable  of  a  vessel  was  cut  off,  during  a  violent  gale, 
by  being  brought  across  the  chain  cable  of  another  ship,  the  loss 

'  2  Valin,  81,  tit.  Insurance,  a.  29. 


SECT.  VIII.]  PERILS   OF  THE   SEAS.  659 

was  paid  without  any  question  by  the  underwriters.  It  was  a  posi- 
tive specific  loss,  in  consequence  of  an  unusual  and  extraordinary 
degree  of  peril. 

In  distinguishing  the  wear  and  tear  of  the  ship  from  the  damage 
which  constitutes  a  loss,  the  cases  of  a  vessel  losing  an  anchor  by 
being  compelled  by  the  perils  insured  against  to  come  to  anchor  in 
an  unusual  place,  or  to  carry  a  press  of  sail  to  escape  an  enemy, 
or  to  keep  off  from  a  lee-shore,  have  been  very  much  discussed, 
and  are  said  to  have  been  the  subjects  of  elaborate  treatises  in 
Germany.  Magens  mentions  the  case  of  a  ship  that  was  com- 
pelled to  anchor  in  a  rocky  place  by  Heligoland,  where  several  of 
her  cables  parted.  This  was  considered  at  Hamburg  to  be  a  loss 
on  the  ship.  He  says,  if  such  a  loss  does  not  come  within  the 
policy,  "  it  ought  to  be  compensated  as  a  good  piece  of  service,"  ^ 
which  implies  a  doubt  whether  it  came  within  the  policy. 

The  same  writer  says  :  "  We  remember  at  London,  where 
ships,  endeavoring  to  keep  clear  of  a  lee-shore,  had  new  sails 
blown  away  and  cables  parted  by  anchoring  in  an  open  sea,  to 
avoid  driving  ashore,  the  losses  were  made  good  by  the  insurers, 
whose  interest  it  always  is  to  make  it  the  master's  interest  to 
spare  nothing,  in  such  extraordinary  cases,  to  save  the  ship  from 
stranding."  ^ 

In  the  United  States  these  two  descriptions  of  loss  are  most 
generally,  if  not  invariably,  considered  as  coming  within  the  stipu- 
lation of  indemnity.  It  does  not  distinctly  appear  that  these  losses 
are  considered  in  England  as  coming  within  the  policy.-^ 

It  will  be  subsequently  considered  in  what  cases  any  of  the 
preceding  losses  are  general  or  particular  average.  To  which- 
ever of  these  descriptions  a  loss  belongs,  the  principles  by  which 
it  is  determined  to  be  within  the  policy  are  the  same  ;  it  must  in 
either  case  happen  under  extraordinary  circumstances,  or  result 
from  the  extraordinary  operation  of  the  perils  insured  against. 


1  Vol.  I.  p.  53,  s.  51.  3  Stevens,  Part  I.,  c.  3,  a.  9;  5B.&P. 

2  Ibid.  3  78 ;  Benecke  &  Stevens  by  Tliil.,  372. 


660  RISKS   COVERED.  [CHAP.  XIII. 


SECTION    IX.       PIRACY,    ROBBERY,    THEFT. 

1106.  Under  the  clause  for  indemnity  for  loss  hy  "pirates, 
robbers  or  rovers,  and  thieves,"  the  underwriters  are  liable  for 
piracy,  and  robbery,  and  plunder  by  force,  by  persons  not  belong- 
ing to  the  vessel,  or  by  the  mariners  belonging  to  it,  where  it  could 
not  have  been  prevented  by  reasonable  vigilance  and  precautions.^ 

According  to  the  old  authorities,  the  risk  of  piracy  would  be 
covered  under  "perils  of  the  seas,"  though  it  were  not  expressly 
insured  against  in  the  policy  under  the  description  of  piracy.  It 
has  been  deternfiined,  that,  in  the  case  of  charter-parties,  by  which 
it  is  stipulated  to  convey  and  deliver  goods,  the  perils  of  the  seas 
excepted,  it  is  a  loss  by  the  perils  of  the  seas  under  this  exception, 
where  the  vessel  is  robbed  or  is  taken  by  pirates.^ 

Under  this  clause  Lord  Kenyon  thought  the  assured  would  have 
been  entitled  to  indemnity  for  a  loss  on  a  cargo  of  corn,  occasioned 
by  a  mob  that  came  on  board  of  a  vessel  lying  at  Elly  Harbor,  in 
Ireland,  and  took  the  government  of  her  from  the  captain  and 
crew,  and  ran  her  upon  a  reef  of  rocks,  whereby  the  cargo  was 
damao-ed,  had  the  insurers  not  been  exempted  from  the  loss  under 
the  memorandum  against  partial  losses  on  that  article.  He  said, 
''  If  a  partial  loss  could  have  been  recovered  upon  this  policy,  the 
assured  might  have  recovered  for  a  loss  by  pirates."  ^ 

Under  the  risk  of  pirates  and  rovers,  or  under  perils  of  the  seas, 
the  insurers  are  liable  for  losses  by  a  mutiny  of  the  crew."* 

Insurance  being  made  on  the  interest  of  the  assured  on  account 
of  his  advances  for  shipping  350  coolies  from  China  for  Peru 
a«Tainst  piracy  and  other  perils,  the  coolies  mutinied,  got  posses- 
sion of  the  ship,  changed  the  course,  and  landed  at  some  place 
out  of  Peru,  and  escaped.  This  was  held  by  Pollock,  C.  B.,  and 
Park,  B.,  Piatt,  B.,  and  Martin,  B.,  of  the  English  Exchequer,  to 


1  See  IMalynes,  Lex.  IMcr.  c.  25,  4  th  3  Ncsbitt  v.   Lushington,  4  T.  R. 
ed.,  p.  295  ;  Emer.  torn.  1 ,  c.  1 2,  s.  29.  783. 

2  1  Roll.  Abr.  218,  pi.  10;  Comb.  5C  ;  4  Brown  v.  Smith,  1  Dow,  349. 
Park,  Ins.  103. 


SECT.  IX.]  PIRACY,  ROBBERY,   THEFT.  661 

be  a  loss  by  piracy.  "  The  running  away  with  the  ship  being  as 
much  the  cause  of  the  loss,  as  if  it  had  been  seized  by  strangers 
and  the  cargo  had  consisted  of  wild  animals  which  had  escaped 
and  could  not  be  caught."^ 

In  some  policies  the  insurers  agree  to  indemnify  against  loss  by 
"assailing"  thieves,  instead  of  "  rovers"  or  "thieves"  simply. 

There  is  a  distinction  between  plunder  committed  with  superior 
force,  and  simple  larceny.  It  is  for  the  purpose  of  adapting  the 
policy  to  this  distinction,  that  some  underwriters  have  introduced 
the  phrase  "  assailing  thieves." 

A  policy  against  thieves  simply  has  not  been  considered  to 
cover  a  loss  by  theft,  except  that  which  is  accompanied  by  vio- 
lence, or  committed  under  circumstances  in  which  it  could  not  be 
prevented.^ 

Weskett  '■'  thinks  that  the  insurers  are  not  answerable  for  "  thefts 
committed  during  the  night  by  land  robbers,  who  come  on  board 
while  the  vessel  is  in  port."  He  is  speaking  of  a  case  of  theft 
without  violence.  And  this  construction  is  adopted  by  Mr.  Jus- 
tice Story."* 

Mr.  Chancellor  Walworth,  of  New  York,  has  held  that  under- 
writers are  answerable  under  this  risk  for  loss  by  theft  committed 
without  violence  by  persons  not  belonging  to  the  ship  while  it 
lies  at  the  wharf.^ 

Under  a  policy  on  goods  against  loss  by,  and  "  barratry  of  the 
master  and  mariners,"  and  by  "  thieves,"  without  the  qualification 
"  assailing,"  on  a  voyage  from  New  York  to  New  Orleans,  and 
thence  to  Tuscumbia,  in  Alabama,  the  insurers  were  charged  in 
New  York  with  the  loss  of  a  part  of  the  goods,  probably  stolen  by 
passengers  or  others,  found   to   be  missing  from  the  packages  on 


1  Naylor  v.  Palmer,  21  Eng.  LaTv  &         3  Tit.  Theft. 

Eq.  R.  (Press  of  Litde,  Brown  &  Co.)  ;        ^  1  Story's  E.  157 ;  and  see  Roc.  Ins. 

S.  C,  22  Eng.  Law  Jurist  R.  (n.  s.)     n.  42. 

Excli.  329.  5  The  Atlas  Ins.  Co.  v.  Storrow,  5 

2  Hartford  v.  Maynard,  Park,  33.     Paige,  Chan.  R.  285. 
See  also  1  Emer.  534,  c.  12,  s.  29; 

Roc.  n.  42 ;  1  Mag.  76,  s.  63  ;  3  Kent's 
Com.  303,  3d  ed. 
VOL.  I.  56 


662  RISKS   COVERED.  [CHAP.  XIH. 

their  being  opened  at  Tuscurabia,  due  vigilance  and  precautions 
against  theft  being  presumed  and  the  burden  of  proving  the  con- 
trary being  considered  to  be  upon  the  underwriters.^ 

An  opposite  decision  has  been  made  by  the  Supreme  Court  of 
Tennessee,  in  case  of  insurance  of  goods  from  Xew  York  via 
Pittsburg  to  Nashville,  part  of  which  were  alleged,  in  the  declara- 
tion for  loss,  to  have  been  stolen  by  persons  connected  with  the 
boats  by  which  the  goods  were  sent.  On  demurrer,  the  judgment 
was  against  the  claim  for  the  loss.^ 

"Where  the  policy  is  against  '■'  thieves  "  simply,  the  provision  is 
too  explicit  and  definite  to  admit  of  the  exclusion  of  all  simple 
larceny,  since  it  would  cancel  this  provision,  since  larceny  by 
violence  is  insured  against  as  robbery.  The  Continental  juris- 
prudence of  Europe  is  not  applicable  on  this  question,  as  has  been 
justly  remarked  by  Mr.  C.  J.  Savage,  of  rsew  York,^  at  least 
under  some  forms  of  policy  in  use  on  the  Continent,  as  those  of 
Nantes  and  Lisbon  given  by  Boulay  Paty,^  where  the  term  "  pil- 
lao^e  "  is  used  in  the  former,  and  in  the  latter  some  term  translated 
bv  the  same  author  as  "  pillage,"  which  I  do  not  understand  to 
be  precisely  equivalent  to  our  term  '•'  theft." 

Accordingly,  I  conclude  that  in  a  policy  against  robbers  and 
thieves,  without  the  qualification  •'  assailing,"  the  insurers  are  lia- 
ble, as  stated  above,  for  theft  committed  on  the  voyage  in  spite  of 
due  vigilance  and  precautions  against  it,  and  especially  where  the 
goods  are  at  the  time  put  out  of  the  control  and  superintendence 
of  the  assured  and  his  agents  and  representatives  appointed  by 
him,  by  the  operation  of  the  perils  insured  against  or  of  perils  to 
which  it  was  evident  that  they  must  be  exposed  though  not  in- 
sured against  in  the  policy. 

1107.  Tht  underwriters  are  answerable  for  loss  hy  plunder  in 
direct  consequence  of  the  insured  subject  being  at  the  time  put  out 
of  the  possessio7i  and  control  of  the  master  and  other  agents  ap- 
pointed by  the  assured,  by  shipwreck  or  other  peril  insured  against, 

1  American  Ins.  Co.  r.  Bryan,  26  3  American  Ins.  Co.  v.  Bryan,  26 
"Wend.  563;  S.  C,  1  Hill's  R.  25.  Wend.  563. 

2  Marshall  v.  Nashville  Ins.  Co.,  1  ■*  Cours  de  Droit  Mar.,  tom.  3,  ed. 
Humph.  118.  1822,  p.  284,  287. 


SECT.  X.]    CAPTURE,  ARRESTS,  RESTRAINTS,  AND  DETENTION.        663 

though  theft  or  plunder  is  not  specifically  insured  against ;  whe- 
ther the  pillage  is  committed  on  the  water  or  on  land.  It  is  a 
general  doctrine,  that  all  the  loss  directly  consequent  upon  a  peril 
is  covered  by  insurance  against  it.^ 

Pothier^  says  the  insurers  are  liable  for  loss  by  plunder  on 
shore,  after  the  shipwreck  of  the  vessel. 

The  reason  given  by  Emerigon  ^  for  this  construction  is,  that  it 
would  be  a  case  of  total  loss,  by  which  the  property  passes  to  the 
underwriters,  and  thus  the  loss  by  plunder  would  be  directly  their 
own  ;  res  perit  domino.  But  this  would  not  necessarily  be  the 
case,  according  to  the  construction  of  this  contract  in  England  and 
the  United  States,  since  the  assured  is  not  obliged  to  abandon  and 
claim  for  a  total  loss,  but  has  his  election  to  claim  either  for  a 
total  or  partial  loss. 

The  doctrine  just  stated  has  been  recognized  in  the  case  of  a 
policy  on  goods  from  London  to  the  Isle  of  France,  in  which  some 
of  the  goods  were  saved,  after  shipwreck,  and  got  on  shore  at  the 
Isle  of  France,  where  they  fell  into  the  hands  of  the  natives,  who 
destroyed  a  part  and  stole  the  remainder.'* 

SECTION    X.        CAPTURE,    ARRESTS,    RESTRAINTS,    AND    DETENTION. 

1108.  In  policies  of  the  common  form,  the  property  or  interest 
is  insured  against  "  takings  at  sea,  arrests,  restraints,  and  detain- 
ments of  all  kings,  princes,  and  people,  of  what  nation,  condition, 
or  quality  soever."  This  part  of  the  policy  protects  the  assured 
against  loss  by  capture  and  detention.  By  capture  is  meant  the 
taking  possession  of  property  with  the  purpose  of  appropriating 
it  to  the  captor^s  own  use,  by  which  it  is  distinguished  from  a 
mere  detention,  with  the  design  of  ultimately  liberating  the  pro- 
perty, as  in  the  case  of  an  embargo.^ 


1  Magoun  v.  New  England  Mut.  Ins.  3  Chap.  12,  s.  29. 

Co.,  1  Story,  157;  and  see  supra,  No.  ^  Bondrett  v.  Hentigg,  1  Holt,  149. 

1098  a.;  infra.  No.  1129,  1132,  1134,  5  i  Emer.  535,  c.  12,  s.  30;  Poth. 

1136,  1137.  tit.  Insurance,  n.  56,  note  by  Estran- 

2  Insurance,  n.  55.  gin. 


664  RISKS    COVERED.  [CHAP.  XIII. 

A  seizure  is  equivalent  to  a  capture,  as  it  is  made  with  the 
intention  of  depriving  the  owner  of  his  property  in  the  subject} 

1109.  The  policy  extends  to  captures,  arrests,  and  detentions 
by  public  enemies  ;  by  belligerents,  where  the  property  insured  is 
neutral ;  ^  or  by  the  government  of  which  the  assured  is  a  subject,^ 
for  any  cause  other  than  a  violation  of  law: 

As  the  taking  of  a  vessel  by  government  to  be  used  as  a  fire- 
ship  :  ^ 

Or  the  capture  of  a  neutral  ship  by  captors  acting  under  the 
belligerent  government  of  which  the  underwriters  are  subjects,  pro- 
vided the  risks  may  bo  legally  insured  against.^ 

1110.  The  above-quoted  clause  of  the  policy  is  more  generally 
understood  to  apply  to  captures,  seizures,  and  detention  by  the 
commissioned  officers  and  agents  of  some  lawful  and  acknow- 
ledged government.  Accordingly  Mr.  Justice  Buller  said,  the 
word  "people"  in  this  clause  "means  the  supreme  power;  the 
power  of  the  country,  whatever  it  may  be."^  Thus  the  court 
considered  the  loss  of  a  cargo  of  corn  by  a  mob  at  Elly  Harbor  as 
coming  under  the  clause  relating  to  piracy. 

The  word  "capture"  is  of  itself  broad  enough  to  comprehend 
any  forcible  seizure,  arrest,  or  detention,  which  may  be  lawfully 
insured  against.  Loss  on  a  slave  cargo  by  the  insurrection  of  the 
slaves,  has  been  held  in  Louisiana  to  be  covered  under  "capture."^ 
But  the  specification  of  captures,  &;c.,  "by  kings,  princes,  and 
people,"  has  been  held  to  limit  the  construction  of  this  provision 
of  the  policy  materially. 

1111.  If  the  vessel  is  detained  by  an  embargo,  whether  imposed 
by  the  government  of  which  the  parties  are  subjects,  or  by  a  foreign 
government,  it  is  an  arrest  and  restraint  within  the  meaning  of 
the  policy.  ^ 

1  11  Johns.  287.  5  Antliony  v.  Molinc,  5  Taunt.  711 ; 

2  llhinelandcr  v.  Ins.  Co.  of  Penn.  Sclinakoneg  v.  Andrews,  id.  716  ;  Ba- 
4  Cranch,  29.  zett  v.  Meyer,  id.  824. 

3  Nantes  v.  Tliompson,  2  East,  385  ;  6  Ncsbitt  v.  Lushington,  4  T.  R.  783. 
and  see  cases  infra.  "^  M'Cargo  v.  New  Orleans  Ins.  Co., 

4  Green  v.  Young,  2  Salk.  444 ;  2  10  Rob.  (La.)  11.  202. 

Ld.  Raym.  840.  8  Green  v.  Young,  2  Ld.  Raym.  840 ; 


SECT.  X.]    CAPTURE,  ARRESTS,  RESTRAINTS,  AND  DETENTION.        665 

1112.  Ajid  SO  if  it  is  stopped  for  search,  and  sent  in  for  exa- 
mination.^ 

1113.  In  case  of  the  voyage  being  broJcen  up  and  renounced 
on  account  of  the  probability  or  certainty  of  loss  by  a  peril  from 
which  the  underwriters  are  expressly  exonerated,  they  are  not  lia- 
ble. 

Insurance  being  made  on  a  cargo  from  New  York  to  ports  in 
the  Gulf  of  Mexico  and  back,  "free  from  seizure  or  detention  on 
account  of  illicit  or  prohibited  trade,"  the  vessel,  after  putting  in 
at  St.  Ander,  one  of  those  ports,  and  delivery  of  the  cargo,  on 
an  agreement  with  General  Mina,  commander  of  the  Independent 
forces  then  in  possession  of  the  place,  the  master  was  compelled 
to  leave  for  fear  of  capture  by  some  Loyalist  ships  that  hove  in 
sight ;  and  before  there  was  opportunity  to  return  and  deliver  the 
cargo  thi  place  had  been  retaken  and  was  occupied  by  the  Loyal- 
ists, and  had  he  entered,  the  cargo  would  have  been  seized  as  pro- 
hibited goods,  and  also  on  account  of  the  master  having  intended 
to  supply  the  Independents ;  whereupon  he  gave  up  the  voyage 
and  returned  with  the  original  cargo  to  New  York.  The  Supreme 
Court  decided  that  the  underwriters  were  not  liable  for  a  total  loss 
on  the  cargo  by  the  loss  of  the  voyage.^ 

1114.  Under  the  perils  of  arrests,  restraints,  and  detention, 
the  insurers  take  the  risk  of  detention  in  a  port  by  its  being 
effectually  blockaded. 

In  an  elaborate  case  before  the  Supreme  Court  of  the  United 
States,  on  a  policy  in  favor  of  Spanish  subjects  on  a  cargo  from 
Baltimore  to  Havana,  the  vessel  having  sailed  and  being  near  the 


S.  C,  2  Salk.  444 ;  Page  r.  Thompson,  312;  M'Bride  v.  Marine  Ins.  Co.,  5 
Park,  Ins.,  8th  ed.  175;  Touteng  v.  Johns.  R  299;  Walden   v.  Phoenix 
Hubbard,  3  B.  &  P.  291;  Code  de  Ins.  Co.,  id.  310;  Ogden  ?;.  N.  Y.  Fire- 
Commerce,  a.  369,  370;  Beawes,  268,  mens'  Ins.  Co.,  10  id.  177;  S.  C,  12 
tit.  Embargo,  &c. ;  Grot  de  Jure  Bel.  id.  25  ;  Lorent  v.  South  Carolina  Ins. 
1,  2,  c.  2,  s.  10  ;  1  Bl.  Com.  270 ;  Black-  Co.,  1  Nott  &  M'Cord,  505  ;  3  Kent's 
enhagen  v.  London  Ass.  Co.,  1  Camp.  Com.  3d  ed.  291. 
454 ;  Rotch  v.  Edie,  6  T.  R.  413  ;  Oli-  i  1  Magens,  67. 
vera  v.  Union  Ins.  Co.,  3  Wheat.  183  ;  2  Smith   v.  Universal  Ins.    Co.,  6 
Odlin  V.  Ins.  Co.  of  Penn.  2  Wash.  Wheat.  176. 
56* 


666  RISKS   COVERED.  [CIIAP.  XIII. 

mouth  of  the  Chesapeake,  February,  1813,  the  master  descried 
four  British  frigates,  officers  from  which  boarded  his  vessel  and 
indorsed  upon  the  papers  that  the  Bay  of  Chesapeake  was  under 
blockade,  and  ordered  him  to  return,  and  not  again  to  attempt  to 
come  out.  The  blockade  was  not  known  in  Baltimore  when  the 
vessel  sailed.  The  voyage  was  thereupon  given  up,  and  the  cargo 
abandoned  to  the  underwriters.  This  loss  was  held  to  be  covered, 
and  Mr.  C.  J.  Marshall,  giving  the  opinion  of  the  court,  remarked 
that  an  embargo  was  admitted  to  be  a  peril  within  the  policy. 
"  The  application  of  force  is  not  more  direct  on  the  vessel  stopped 
in  port  by  an  embargo,  than  on  the  vessel  stopped  in  port  by  a 
blockading  squadron."  ^ 

A  distinction  is  made  by  the  court  in  this  and  also  in  a  subse- 
quent case,-  between  an  occlusion  in  a  port,  bay,  or  river,  and  an 
exclusion  from  it;  the  former  being  held  to  be  an  arrest,  restraint, 
and  detention  within  the  policy ;  the  latter,  not  so. 

This  distinction  had  not  been  made  in  a  prior  case  in  Massa- 
chusetts, where,  under  a  policy  upon  a  ship  then  at  Buenos  Ayres, 
the  master  was  prevented  from  leaving  that  place  by  notice  from 
the  officers  of  a  British  frigate  and  gun-boats  lying  in  the  river 
below  that  they  should  capture  his  vessel  if  he  came  down.  The 
court,  then  consisting  of  Parker,  C.  J.,  and  Thatcher,  Jackson, 
Dewey,  and  Putnam,  Justices,  decided  against  the  assured,^  on  the 
authority  of  a  previous  decision  by  Parsons,  C.  J.,  and  his  asso- 
ciates,^ on  a  policy  upon  cargo,  where  the  port  of  destination  was 
under  constructive  blockade  by  the  British  Orders  in  Council, 
1807,  and  the  importation  was  interdicted  by  some  of  the  decrees 
of  the  Emperor  Napoleon  ;  from  which  case  the  subsequent  one  is 
distinguishable,  as  are  those  before  the  Supreme  Court  of  the 
United  States,  by  the  circumstance  that  in  the  latter  the  vessel 
was  restrained  from  leaving  a  port. 

This  distinction  just  referred  to  is  not  taken  in  a  Maryland  case 


1  Olivera P.Union  Ins.  Co.,  3  Wheat.  ^  Brewer  v.  Union  Ins.  Co.,  12  Mass. 
183.  R.  173. 

2  Smith  V.  Universal  Ins.   Co.,  C  ^  Richardson  v.  Maine  Fire  &  Mar. 
Wheat.  176.  Ins.  Co.,  G  Mass.  R.  102. 


SECT.  X.]    CAPTURE,  ARRESTS,  RESTRAINTS,  AND  DETENTION.        G67 

of  a  ship  insured  from  Baltimore  to  Lisbon,  in  1813,  and  so  being 
about  the  time  of  that  in  the  Supreme  Court  of  the  United  States 
cited  above.  In  the  Maryland  case  the  vessel  was  also  stopped 
by  the  British  squadron  then  blockading  Chesapeake  Bay,  and 
ordered  back.  This  was,  however,  an  insurance  on  the  ship, 
which  differs  in  respect  of  the  present  question  from  one  of  the 
cargo  or  freight,  as  we  shall  see  in  considering  what  is  a  loss  of  the 
voyage  giving  a  right  of  abandonment  on  these  different  subjects 
of  insurance,  in  a  subsequent  chapter. 

1115.  Whether  a  loss  consequent  upon  the  imminency  of  a  cap- 
ture, arrest,  restraint,  or  detention,  is  within  the  risk  assumed  by 
insurance  against  such  perils  ? 

Where  intelligence  is  received  on  the  voyage  that  the  port  of 
destination  is  blockaded,  or  the  captain  is  warned  that  the  import- 
ation of  his  cargo  is  interdicted,  and  he  will  be  exposed  to  cap- 
ture or  seizure  by  proceeding  on  his  course,  the  question  has  arisen 
and  been  elaborately  discussed  in  numerous  cases,  whether  this  is 
an  arrest  or  detention.  Must  the  captain  proceed  for  his  port  of 
destination,  notwithstanding  such  warning,  and  take  the  hazard  of 
capture  ?  or  must  he  turn  off  to  some  neighboring  port,  or  return  to 
his  port  of  departure,  and  wait  until  the  blockade,  or  other  obsta- 
cle to  the  voyage,  is  removed  ?  Or  is  the  voyage  broken  up  so 
as  to  make  the  insurers  answerable  for  a  total  loss  ? 

It  has  been  held,  that  if  the  captain  disregards  the  danger  of 
which  he  has  sufKcient  notice,  and  proceeds  on  the  voyage,  in  such 
case,  whatever  loss  happens,  it  will  be  through  his  fault,  and  the 
assured  cannot  recover  for  it,  unless  the  captain's  misconduct 
amounts  to  barratry.^ 

This  is  in  effect  holding  that  merely  the  blockade  of  the  port 
of  destination,  or  interdiction  there,  is  not  of  itself  a  detention, 
arrest,  or  restraint,  so  long  as  the  vessel  is  not  taken  forcible  pos- 
session of,  although  the  voyage  may  be  defeated.  The  effect  is 
to  prevent  the  vessel,  at  least,  from  pursuing  her  course.  This  is 
an   inevitable  accident,  which  discharges  the  owners  from  their 

1  Schmidt  w.  United  Ins.  Co.,  1  Johns.  Maine  Fire  &  Mar.  Ins.  Co.,  6  Mass. 
249,  at  page  260,  263  ;  Richardson  v.    R.  102. 


668  RISKS   COVERED.  [CHAP.  XIII. 

obligation,  under  the  charter-party  or  bill  of  lading,  to  transport 
the  cargo  to  the  port  of  destination,^  and  dissolves  the  contract 
with  the  mariners  for  wages.^ 

The  interruption  of  the  voyage  by  blockade,  interdiction  at  the 
port  of  destination,  or  the  imminent  peril  of  capture,  has  been 
said  in  some  cases,  not  to  be  a  loss  within  the  policy,  because 
the  insurers  are  not  liable  for  a  loss  incurred  through  fear  of  a 
peril,  or  quia  timet.  It  is  not  easy  to  say  what  is  the  precise  im- 
port of  this  maxim  respecting  fear  of  a  peril. 

The  common  form  of  the  policy  provides  that,  "  in  case  of  any 
loss  or  misfortune,  it  shall  be  lawful  for  the  assured  to  sue,  labor, 
and  travel,  in  and  about  the  defence,  safeguard,  and  recovery  of 
the  property,  to  the  charges  whereof  the  insurers  will  contribute." 
If  this  clause  applies  only  to  cases  where  a  direct  and  visible  da- 
mage has  actually  happened  to  the  property,  such  as  shipwreck 
or  capture,  still  it  must  have  reference  to  something  future ;  the 
assured  sues  and  labors  to  prevent  the  property  from  being  plun- 
dered in  one  case  or  condemned  in  the  other,  —  he  has  reference 
to  something  which  he  fears  may  take  place. 

The  insurers  are  liable  for  what  is  paid  to  captors  by  way  of 
compromise ;  here  the  peril  has  actually  overtaken  the  property ; 
it  has  been  captured ;  but,  in  offering  a  compromise,  the  assured 
is  determined  by  the  prospect  of  the  condemnation  of  the  pro- 
perty, or  of  the  expense  of  obtaining  its  release.  What  has  ac- 
tually happened,  namely,  the  capture,  seems  to  be  of  no  importance 
except  as  it  makes  detention,  or  the  condemnation  of  the  property, 
or  expense  of  obtaining  its  release,  probable  ;  and  a  compromise 
to  prevent  an  impending  capture,  which  would  otherwise  be  inevi- 
table, seems  to  stand  very  much  upon  the  same  ground  with  a  com- 
promise to  prevent  the  consequences  of  a  capture  already  made. 
Whether  the  fear  is,  that  the  peril  will  begin,  or,  having  begun, 
will  continue  to  operate  on  the  property,  the  interest  of  the  par- 
ties seems  equally  to  require  the  assured  to  act  upon  such  fear, 
where  it  is  well  grounded. 


1  rutiiam  V.  Wood,  3  ]\Iass.  R.  481 ;        2  The  Saratoga,  2  Gall.  164. 
Scott  V.  Libby,  2  Johns.  336. 


SECT.  X.]     CAPTURE,  ARRESTS,  RESTRAINTS,  AND  DETENTION.        669 

Insurers  were  held  liable  for  the  loss  of  specie  thrown  overboard 
at  the  time  the  ship  was  captured,  to  prevent  its  falling  into  the 
hands  of  the  enemy. ^  Yet  it  was  thrown  over  for  fear  it  would 
coiDe  into  his  hands;  and  though  this  was  done  at  the  time  of  the 
capture,  this  only  proves  that  the  peril  was  so  impending  as  to 
justify  the  assured  in  acting  with  reference  to  it. 

They  have  also  been  held  liable  for  the  loss  of  a  vessel  volun- 
tarily burnt  to  prevent  her  falling  into  the  hands  of  the  enemy .^ 
This  was  ruled  by  Lord  Ellenborough  to  be  a  loss  by  fire,  but 
this  only  relates  to  the  manner  of  declaring  in  the  action,  for  the 
insurers  certainly  could  not  be  liable  unless  enemies  and  capture 
were  amons  the  risks  insured  against. 

Jettisons,  and  many  other  losses  that  are  subjects  of  general 
contribution,  are  often  incurred  on  account  of  an  impending  peril 
that  has  not  at  the  time  begun  sensibly  to  take  effect  upon  the 
property,  as  well  as  on  account  of  what  is  apprehended  from  the 
continuance  of  a  peril  that  has  already  begun  to  operate ;  yet,  if 
the  peril  be  insured  against,  the  insurers  are  liable  for  these  losses. 

There  appears  to  be  reason,  therefore,  to  infer,  that  the  in- 
surers are  liable  for  a  loss  that  may  fairly  be  considered  to  be 
exclusively  and  solely  occasioned  by  a  peril  insured  against, 
whether  the  loss  prevents,  or  is  concurrent  with,  or  follows,  the 
actual  operation  of  the  peril. 

Kent,  C.  J.,  applies  the  maxim  quia  timet  to  a  danger  too  re- 
mote to  be  regarded  as  the  specified  peril. ^  This  is  the  only  defi- 
nite, intelligible  meaning  which  I  am  able  to  find  for  the  maxim. 
It  seems  not  to  be  invariably  limited  to  this  sense,  but  for  the 
present  purpose  we  will  consider  it  to  be  so  limited,  without  stop- 
ping to  inquire  whether  it  is  always  true,  even  so  far.  It  con- 
cerns us  to  notice  it  only  for  the  purpose  of  preventing  it  from 
spreading  obscurity  over  our  inquiries. 

The  question,  whether  interdiction  of  trade  at  the  port  of  des- 


1  Butler  V.  Wiklman,  3  B.  &  A.  and  Estrangin's  note ;  Valin,  tit.  In- 

398.  surance,  a.  26. 

-  Gordon  v.  Rimmington,  1  Camp.  3  q  Johns,  p.  253,  in  Craig  v.  United 

123;  Pothier,  tit.  Insurance,  n.  53,  Ins.  Co. 


670  RISKS   COVERED.  [CIIAP.  XIII. 

tination,  interception  of  the  voyage  by  blockade,  and  imminent 
danger  of  capture  or  seizure,  amount  to  an  arrest,  restraint,  and 
detention,  for  which  the  insurers  are  Hable,  has  occurred  in  dif- 
ferent cases  in  England,  and  has  been  elaborately  considered  in 
the  courts  of  the  United  States. 

The  underwriters  on  a  cargo  of  pilchards  insured  from  Corn- 
wall to  Naples  were  held  in  England  not  to  be  liable  for  the  loss 
where  the  voyage  was  broken  up  and  lost,  and  the  cargo,  after  a 
survey,  sold  at  Mahon,  at  which  place  the  vessel  had  put  in  by 
order  of  the  commander  of  the  convoy  with  which  it  sailed,  in 
consequence  of  intelligence  that  English  vessels  were  excluded 
from  all  ports  of  the  kingdom  of  Naples :  ^ 

Or  where  the  voyage  was  defeated  by  the  port  of  destination 
having  having  fallen  into  the  hands  of  the  enemy  after  the  vessel 
sailed  :  ^ 

Or  where  the  vessel,  being  ordered  away  from  Maldonado  in 
the  river  Plate,  the  only  port  of  destination  named  in  the  policy 
which  was  not  in  the  hands  of  the  enemy,  met  with  a  loss  by 
perils  of  the  sea  in  proceeding  for  Rio  de  Janeiro,  the  nearest 
friendly  port :  ^ 

Or  where,  on  a  voyage  from  Hull  to  St.  Petersburg,  the  master 
of  a  British  ship  was  informed  by  the  commander  of  the  convoy 
with  which  he  sailed,  that  British  vessels,  were  embargoed  in  the 
Russian  ports,  and  therefore  returned  to  England  :  ^ 

Or  where,  on  a  voyage  by  a  British  vessel  from  London  to 

1  Hadkinson  v.  Robinson,  3  B.  &  P.  2  Lubbock  v.  Rowcroft,  5  Esp.  50, 
388,  per  Alvanley,  C.  J.,  and  his  asso-  per  Lord  EUenborough,  C.  J.,  on  the 
ciates,  on  the  ground  that  the  i)eril  of  ground  of  its  being  a  mere  fear  of  cap- 
arrest  acted  not  directly,  but  circui-  turc. 

tously,  on  the  subject.    This  case  was  3  Parkin  v.   Tunno,  11  East,  22; 

approved  by  the  Supreme  Court  of  S.  C.,2  Camp.  59  ;  on  the  ground  that 

the  United  States,  as  illustrating  the  "  the  policy  could  not  cover  the  voy- 

doctrine  that  the  underwriters  against  age  to  Rio,  notwithstanding  the  neces- 

these  perils  are  not  answerable  for  sity  of  it." 

the  risk  of  the  interdiction  of  trade  ^  Forster  v.  Christie,  1 1  East,  205, 

by  the  authorities  in  possession  of  the  decided  on  the  authority  of  Iladkin- 

port  of  destination.    Smith  ?'.  Univcr-  son  t'.  Robinson,  supra. 
sal  Ins.  Co.,  G  Wheat.  R.  17G. 


SECT.  X.]    CAPTURE,  ARRESTS,  RESTRAINTS,  AND  DETENTION.        671 

Revel,  the  master,  hearing  on  the  passage  of  the  embargo  laid  on 
British  vessels  in  Russia,  put  back,  and  the  vessel  was  lost  while 
on  the  course  to  England  :  ^ 

Or  where,  in  Massachusetts,  under  a  policy  on  a  cargo  from 
Salem  in  that  State  to  Malaga,  the  master,  being  warned  by  a 
British  privateer,  (1808,)  by  indorsement  of  his  register,  not  to 
proceed  to  any  port  except  in  Great  Britain,  Gibraltar,  or  Malta, 
and  was  served  with  a  copy  of  the  British  Orders  in  Council,  de- 
claring the  Continental  ports  to  be  in  a  state  of  blockade,  and 
advised  to  return  to  Salem,  accordingly  put  about,  and  was  cap- 
tured by  another  British  privateer,  while  proceeding  for  Salem, 
and  afterwards  rescued  his  vessel  and  arrived  at  that  port:^ 

Or  where,  under  a  policy  on  vessel  and  cargo,  on  a  voyage  from 
Salem  to  St.  Andero  in  Spain,  the  master,  having  a  similar  notice 
to  that  in  the  preceding  case,  proceeded  to  Gibraltar,  and  relin- 
quished the  voyage : ^ 

Or  where,  under  a  policy  upon  a  cargo  of  fish  from  Boston  to 
Leghorn,  the  master  having  notice  at  Gibraltar  of  the  same 
British  Orders  in  Council,  and  the  counter  French  Decrees,  gave 
up  his  voyage  and  sold  his  cargo  there,  the  same  being  in  a  heat- 
ing state,  and  about  to  be  spoiled :  ^ 

J  Blackenhagen  v.  London  Ass.  Co.,  policy,"  and  to  admit  it  would  be 

1  Camp.  454,  per  Lord  EUenborougli,  productive  of  uncertainty,  and  open  a 

■who  said  the  case  would  "  hardly  bear  door  to  frauds."     See  remarks  upon 

to  be  stated,"  as  the  voyage  insured  this  case  by  Brackenridge,  J.,  5  Binn. 

had  been  abandoned,  though  his  rul-  421. 

ing  might  be  otherwise  if  the  inten-  3  Cook  v.  Essex  Fire  &  Mar.  Ins. 
tion  of  the  master  had  been  to  resume  Co.,  6  Mass.  R.  122,  per  Parsons,  C.  J., 
the  voyage.  The  assured  in  this  case,  and  his  associates,  on  the  ground  that 
having  been  nonsuited,  brought  his  though  the  voyage  was  lost  by  a  rea- 
action  in  the  Common  Pleas,  where  sonable  fear  of  capture  on  account  of 
the  ruling,  by  Sir  James  Mansfield  contraband  trade  had  the  ship  pro- 
was  the  same,  but  the  jury  found  a  ceeded,  which  trade  was  not  insured 
verdict  in  favor  of  the  assured,  which  against,  and  also  on  the  ground  that 
the  court  set  aside.     1  Id.  456,  n.  the  insurers  would  not  have  been  lia- 

2  Richardson  v.  Maine  Fire  &  Mar.  ble,  if  it  had  been  insured  against. 

Ins.  Co.,  6  Mass.  R.  102,  per  Parsons,  See  also  Wheatland  v.  Gray,  6  Mass. 

C.  J.,  and  his  associates,  that  a  "fear  R.  124. 

of  a  loss  was  not  a  peril  within  the  ^  Amory  v.  Jones,  6  Mass.  R.  318, 


672 


RISKS   COVERED. 


[chap.  XIII. 


Or  where,  under  policies  on  vessel  and  cargo  from  New  York 
to  Barcelona  or  Salon  in  Spam,  with  divers  special  stipulations 
respecting  abandonment  on  capture  or  detention,  the  master  hav- 
ing notice  of  the  British  Orders  in  Council  and  French  Decrees 
above  mentioned,  instituting  what  have  been  termed  "  paper 
blockades,"  and  declaring  sweeping  interdictions  to  neutral  com- 
merce, and  also  having  notice  of  an  Algerine  war  upon  American 
commerce,  gave  up  the  voyage  and  returned  with  his  cargo  to 
New  York.i 

It  is  held  by  the  Supreme  Court  of  the  United  States  that  the 
loss  of  the  voyage  through  fear  of  capture,  arrest,  restraint,  or  de- 
tention, occasioned  by  false  intelligence,  is  not  a  risk  covered  by 
an  insurance  against  those  perils  ;  as  where  the  master  of  a  ves- 
sel, on  a  voyage  from  Philadelphia  to  the  Isle  of  France,  in  1808, 
being  detained  two  days,  and  warned  by  a  British  ship  of  war,  by 
indorsement  on  the  ship's  papers,  not  to  proceed  to  any  port  of 
the  enemies  of  Great  Britain,  and  told  erroneously  that  the  Isle  of 
France  was  blockaded  and  his  vessel  would  be  subject  to  capture  if 
he  proceeded  thither,  thereupon  abandoned  his  voyage  and  returned 
to  Philadelphia.2 


per  Parsons,  C.  J.,  and  Lis  associates, 
on  the  ground  of  fear  of  peril.  See 
also,  for  similar  decisions  by  the  same 
court  on  a  similar  state  of  facts,  Lee 
t'.  Gray,  7  Mass.  K.  3-19 ;  Tucker  v. 
United  Mar.  &  Fire  Ins.  Co.,  1 2  Mass. 
R.  2S8  ;  in  which  the  judgment  is  put 
upon  the  ground  of  fear  of  peril. 

1  Craig  r.  United  Ins.  Co.,  G  Johns. 
226,  per  Kent,  C.  J.,  and  his  asso- 
ciates, on  the  ground  that  it  did  not 
appear  that,  under  the  orders  and  de- 
crees and  interdictions,  the  vessel  or 
cargo  would  certainly  have  been  sub- 
ject to  capture  or  seizure,  and  con- 
demnation, had  the  vessel  proceeded 
to  Barcelona.  This  made  it  a  ques- 
tion for  the  jur}'.  And  sec  Corp  r. 
United  Ins.  Co.,  8  Johns.  277,  for  a 


similar  judgment  on  a  like  state  of 
facts.  In  case  of  intelligence  received 
by  an  English  vessel  after  the  voyage 
had  begun,  that  Lisbon,  the  port  of 
destination,  had  fallen  into  the  hands 
of  the  French,  then  at  war  with  Great 
Britain,  and  of  the  voyage  being 
thereby  defeated,  it  was  adjudged  in 
the  English  King's  Bench,  that  no 
freight  pro  rata  was  due  under  a  char- 
ter-party stipulating  for  payment  of 
freight  on  the  right  delivery  of  the 
cargo  at  Lisbon.  Liddard  v.  Lopes, 
10  East,  526. 

2  Kingi^.DelawarcIns.Co.G  Cranch, 
71 ;  S.  C,  2  Wash.  C.  C.  R.  300.  The 
gi'ound  of  the  decision  was  that  the 
voyage  was  not  prohibited  by  the 
British   orders   in   council,  and  that 


SECT.  X.]    CAPTURE,  ARRESTS,  RESTRAINTS,  AND  DETENTION.        673 

There  have  been,  however,  divers  decisions  that  the  loss  of  a 
voyage  by  its  being  abandoned  on  account  of  the  certainty  of  cap- 
ture or  seizure,  upon  the  vessel's  proceeding,  or  of  such  extreme 
probability  as  to  render  proceeding  upon  the  voyage  egregiously 
rash  and  inexcusable,  is  a  loss  by  arrest,  restraint,  and  detention  :  ^ 

As  where,  under  a  policy  made  in  New  York  on  cargo,  on  a 
voyage  thence  to  Sweden  or  Russia,  the  master,  being  off  Gothen- 
burg, July,  1812,  received  intelligence  of  war  between  the  United 
States  and  Great  Britain,  and  considering  capture  to  be  certain  if 
he  should  proceed  on  his  voyage  up  the  Baltic,  then  swarming  with 
British  cruisers,  some  of  which  were  constantly  in  sight,  renounced 
the  voyage,  and  put  into  Gothenburgh,  and  there  disposed  of  his 
cargo : ^ 

And  where,  in  another  New  York  case,  under  a  policy  on  a 
cargo  from  New  York  to  Hamburg,  the  master  of  the  vessel  had 
notice  from  a  British  ship  of  war  in  the  English  Channel,  that  the 
Elbe  was  blockaded,  which  notice  was  indorsed  on  the  ship's  re- 
gister, and  thereupon  turned  off  to  Embden  as  the  nearest  neutral 
port  to  Hamburg,  where  the  consignees,  at  the  latter  place,  con- 
sented to  receive  the  cargo :  ^ 

And  where,  in  a  Pennsylvania  case,  under  a  policy  on  goods 
from  Philadelphia  to  Antwerp,  a  guard  was  put  on  board  of  the 
vessel  on  its  arriving  in  the  Flushing  Roads,  October,  1807,  and 
the  vessel  was  ordered  not  to  proceed  to  Antwerp,  and  the  guard 
remained  on  board  until  the  master  consented  to  change  his  desti- 
nation and  proceeded  for  Rotterdam  by  advice  of  his  consignees, 

there  was  not  either  any  physical  or        3  Smiclt  v.  United  Ins.  Co.,  1  Johns, 

legal  impediment  to  the  vessel's  pro-  249  ;  Kent,  C.  J.,  Thompson,  J.,  and 

ceeding.  Livingston,  J.,  being  in  favor  of  the 

^  Craig  V.  United  Ins.  Co.,  6  Johns,  claim  for  a  total  loss,  on  account  of 

226;  per  Kent,  C  J.,  giving  the  opi-  loss  of  the  voyage  on  the  cargo  by  re- 

nion  of  the  court;  and  see  Symonds  straint,  citing  Targa,  c.  59,  291;  Ca- 

V.  United  Ins.  Co.,  4  Dall.  417.  sar.  Disc.  23,  n.  84;  Emer.  tom.  1, 

2  Saltusz;.  United  Ins.  Co.,  15  Johns,  p.  507,  c.  12,  s.  26,  and  p.  542,  c.  12, 

523,  per  Thompson,  C.  J.,  and  Spen-  s.  31 ;  and  Spencer,  J.,  and  Tompkins, 

cer,  Van  Ness,  Yates,  and  Piatt,  Jus-  J.,  dissenting,   on   the  ground    that 

tices,  upon  the  ground  that  it  was  a  there  had  been  no  actual  operation  of 

restraint  by  princes  or  by  men-of-war.  any  vis  major  on  the  insured  subject. 
VOL.  I.                           57 


674  RISKS   COVERED.  [CHAP.  XIII. 

and  was  captured  by  a  British  ship  and  sent  to  the  Downs  and 
detained  until  he  had  intelhgence  of  the  decree  in  Hollandfor- 
bidding  the  entry  of  vessels  which  had  touched  in  England,  when 
he  relinquished  his  voyage :  ^ 

And  where,  in  a  Louisiana  case,  a  cargo  being  insured  from 
New  Orleans  to  Tampico,  the  vessel  was  boarded  off  the  latter 
place  by  officers  from  the  French  blockading  squadron,  and  for- 
bidden to  enter,  and  prevented  from  entering,  and  ordered  to  put 
back  to  her  port  of  departure,  and  thereupon  returned  thither,  the 
Supreme  Court  of  that  State  held  it  to  be  a  total  loss  by  arrest, 
though  neither  vessel  nor  cargo  was  actuall}''  seized  or  detained. ^ 

The  cases  above  referred  to  evidently  present  striking  discre- 
pancies, and  prove  the  nicety  and  difficulty  of  the  question  under 
consideration. 

One  of  the  questions  suggested  by  these  cases  relates  to  the 
time  when  the  risk  ends,  in  case  of  the  insured  voyage  being  re- 
linquished ;  in  respect  to  which,  I  cannot  but  doubt  those  cases 
where  it  is  held  that  the  risk  ceases  immediately  on  the  vessel's 
changing  its  course.^  These  decisions  proceed  upon  the  notion, 
that  the  risk  continues  only  so  long  as  the  voyage  continues.  But 
the  fairer  and  truer  way  of  applying  this  proposition  seems  to  be, 
to  consider  the  voyage  as  continuing  until  the  ship  and  cargo  can 
be  extricated  from  it.  Where  the  master  steers  for  another  port 
of  destination,  or  returns  to  his  port  of  departure  merely  for  the 
purpose  of  avoiding  the  capture  or  seizure  which  awaits  him  inevi- 
tably if  he  proceeds  to  the  original  port  of  destination,  he  does  not 
disengage  himself  from  the  insured  voyage  until  he   arrives  at  his 

1  Savage  V.  Pleasants,  5  Binn.  403.  2  Vigers  v.  Ocean  Ins.  Co.,  12  La. 

Tilghman,  C.  J.,  giving  tlic  opinion  of  R.  367. 

the  court,  remarks  that,  in  reference  3  Lubbock  v.  Rowcroft,  5  Esp.  50 ; 

to  the  decisions  against  the  assured  in  Parkin  v.  Tunno,  11  East,  22  ;  S.  C, 

similar  cases,  "the  assured  would  be  2  Camp.  259;  Blackenhagen  v.  Lon- 

in  a  hard  situation,"  if  he  could  not  don  Ass.  Co.,  1  id.  451 ;  Richardson 

recover  for  a  capture  if  he  proceeded,  v.  Maine  Ins.  Co.,  6  Mass.  R.  102; 

or  for  a  loss  of  the  voyage  if  he  aban-  Cook  v.  Essex  Ins.  Co.,  id.  122. 
doned  it.     See  also  remarks  of  Tilgh- 
man, C  J.,  in  Thompson  v.  Read,  12 
Sorg.  &  11.  440. 


SECT.  X.]    CAPTURE,  ARRESTS,  RESTRAINTS,  AND  DETENTION.        675 

home  port,  or  the  foreign  port  of  necessity  which  he  has  selected. 
No  new  enterprise  is  yet  projected.  He  is  only  adopting  what  he 
deems  the  least  hazardous  way  of  bringing  the  pending  voyage  to 
an  end.  I  cannot  see  how  the  risk  should  be  terminated  by  avoid- 
ing seizure  or  capture  in  such  case,  any  more  than  by  shunning 
a  rock  or  shoal.  I  accordingly  state  as  what  seems  to  me  to  be 
the  better  doctrine  on  this  subject,  that, 

In  case  of  the  master  justifiably  turning  off  to  another  port  of 
discharge,  or  to  his  port  of  departure,  merely  to  avoid  certain  cap- 
ture at  that  of  the  original  destination,  the  risJc  continues  on  the 
ship,  cargo,  or  freight,  until  arrival  at  such  port. 

The  risk  must  terminate  at  such  port  on  all  the  interests. 
There  may,  in  the  mean  time,  have  been  partial  losses  on  either 
interest.  In  respect  to  the  ship,  if  it  arrives  in  a  navigable  state, 
without  damage  over  half  of  its  value,  there  has  been  no  total  loss. 
In  respect  of  the  freight,  there  may  have  been  a  partial  or  total 
loss,  or  no  loss  at  all,  according  to  the  contract  on  which  that 
interest  depends.  The  result  in  respect  of  the  cargo  may  be 
different  from  that  in  respect  of  the  other  interests,  as  will  appear 
in  the  chapter  on  total  loss  and  abandonment,  for  the  reason  that 
a  right  of  abandonment  may  accrue  in  respect  of  this  interest 
where,  on  the  same  voyage,  it  does  not  accrue  in  respect  of  the 
others. 

Another  question  arising  on  the  jurisprudence  above  recapitu- 
lated is,  whether  there  is  any  distinction  between  a  voyage  being 
broken  up  by  a  blockade  and  its  being  broken  up  by  an  interdic- 
tion by  the  authorities  in  command  at  the  port  of  destination.  In 
all  the  cases  referred  to  except  one,^  these  different  ways  of  the 
voyage  being  defeated  are  spoken  of  as  being  equivalent  to  each 
other.  In  that  case  an  interdiction  by  the  authorities  at  the  port 
of  destination  is  adjudged  not  to  be  at  the  risk  of  the  insurers,  so 
far  as  the  perils  insured  against  are  concerned,  though  the  being 
shut  up  in  a  bay  or  port  by  a  blockade  is  considered  to  be  covered 
by  the  policy  against  restraints. 

That  distinction  suggests  still  another  question,  namely,  whether 

'  Smith  V.  Universal  Ins.  Co.,  6  Wheat.  176. 


676  RISKS   COVERED.  [CHAP.  XHI. 

there  is  any  difference  between  being  hindered  by  a  blockade  from 
leaving  a  port,  or  river,  or  bay,  or  a  continent,  according  to  the 
extent  of  the  real  or  pretended  blockade,  and  the  being  hindered 
from  entering  or  coming  within  such  limit.  And  on  this  question 
I  cannot,  to  our  present  purpose,  perceive  any  ground  of  distinc- 
tion of  the  two  cases  of  passing  a  belligerent  or  hostile  squad- 
ron or  fort,  whether  the  vessel  is  going  one  way  or  the  other. 
Whether  it  might  make  a  difference  in  respect  to  the  right  of 
abandonment  in  any  given  case,  is  not  material  to  our  present  in- 
quiry, for  though  it  should  be  considered  to  be  at  the  risk  of  the 
insurer  in  each  case,  still  the  consequence  as  to  the  right  of  aban- 
donment might  not  necessarily  be  the  same  in  both.  We  will  then 
consider  the  responsibility  of  the  insurer  to  be  the  same  in  both 
cases. 

Emerigon  is  a  grave  authority  on  the  present  question,  being 
one  of  general  principles,  and  the  same  under  different  jurisdic- 
tions. He  mentions  the  case  of  an  English  vessel  being  prevented 
from  entering  Leghorn,  its  port  of  destination,  on  account  of  a 
Dutch  squadron,  then  hostile,  being  at  that  port,  and  the  master's 
going  to  Naples  and  discharging  his  cargo  there.  The  entire 
freight  was  awarded  to  the  master  by  the  English  consul  and  two 
adjudicators  associated  with  hira.^  This  decision  is  approved  by 
Emerigon,  and  a  similar  one  made  by  himself  and  his  associated 
arbitrators,  with  the  qualification  that  freight  is  to  be  allowed 
pro  rata  itineris  peracti.  In  other  words,  the  contract  for  the 
voyage  is  to  subsist  and  be  in  force  until  arrival  at  the  port  of 
necessity. 

Mr.  C.  J.  Tilghman  intimates  an  opinion,  obiter,  that  the  de- 
feat of  a  voyage  by  blockade,  "  where  the  danger  is  so  great  as 
to  amount  almost  to  certainty  of  capture,"  is,  or  should  be,  a 
peril  covered  as  an  "arrest"  or  "restraint."'^ 

The  adjudications,  in  the  English  and  American  cases  last 
above  recapitulated,  are  to  the  same  effect,  and  I  venture  to  state 
it  as  the  better  doctrine,  that, 


'  Tome  I.  p.  557,  c.  12,  s.  34. 

2  Thompson  v.  Kcad,  12  Scrg.  &  R.,  App.  440. 


SECT  XL]  RISKS  FROM  PROHIBITED  AND  CONTRABAND  TRADE.      677 

Where,  after  the  risk  has  begun,  the  voyage  is  inevitably  de- 
feated by  blockade,  or  interdiction  at  the  port  of  departure,  or 
destination,  or  by  a  hostile  fleet  being  in  the  way,  rendering  the 
proceeding  upon  it  utterly  impracticable,  or  capture  or  seizure  so 
extremely  probable  that  proceeding  would  be  inexcusable,  the  risk 
continues  till  the  vessel  has  arrived  at  another  port  of  discharge 
adopted  instead  of  that  originally  intended ;  and  also,  that  an 
assured  on  the  cargo  has  a  right  to  abandon^- 

1116.  In  insurance  against  ^^  unlawful  arrests,  restraints,  and 
detainments,^^  the  qualification  "unlawful"  applies  to  "  restraints'^ 
and  "  detainments  "  no  less  than  to  "  arrests."  ^ 

It  was  held  by  the  Supreme  Court  of  the  United  States  under 
this  clause,  that  a  British  blockading  squadron's  preventing  a  neu- 
tral vessel  from  coming  out  of  Chesapeake  Bay  was  not  authorized 
by  the  law  of  nations,  and  so  was  an  "  unlawful  "  restraint.^ 

SECTION    XI.       RISKS    FROM  PROHIBITED  AND    CONTRABAND  TRADE. 

1117.  Under  the  common  form  of  the  policy,  without  any  ex- 
ception of  the  risk  of  trade,  illicit  or  prohibited  by  foreign  laws, 
the  insurers  are  liable  for  losses  in  consequence  of  violations  of  the 
trade  laws  of  foreign  states,  if  they  were  apprised  of  the  intention 
to  violate  such  laws,  either  by  any  thing  contained  in  the  policy, 
or  by  the  known  laws  of  the  place  to  which  the  vessel  is  destined, 
or  the  known  usages  of  the  trade.^ 

Where  it  is  notorious  that  the  trade  is  prohibited  at  the  foreign 


1  See  Emerigon,  torn.  1,  c.  12,  s.  31.  Co.,  6  Mass.  R.  102 ;  Andrews  v.  Es- 

2  M'Call  V.  Marine  Ins.  Co.,  8  sex  Ins.  Co.,  3  Mason's  R.  6  ;  and  see 
Cranch,  59.  2  Duer,  Mar.  Ins.  619,  Leot.  13,  Part 

3  Ollvera  v.  Union  Ins.  Co.,  3  Wheat.  II.  s.  1,  sub-s.  38 ;  Pollock  v.  Babcock, 
183.  See  also  Thompson  v.  Read,  12  6  Mass.  R.  234;  Lever  v.  Fletcher, 
Serg.  V.  R.,  App.  440,  as  to  -what  is  a  Park,  Ins.,  8th  ed.,  507 ;  Kohne  v.  Ins. 
"lawful"  restraint  by  blockade.  Co.  of  North  America,  1  Wash.  C.  C. 

4  1  Emerigon,  684,  c.  12,  s.  51;  R.,  158;  Livingston  z;.  Maryland  Ins. 
Valin,tom.  2,  p.  131,  Insurance,  a.  49  ;  Co.,  7  Cranch,  506;  and  see  supra, 
Archibald  v.  Mercantile  Ins.  Co.,  3  c.  7,  s.  9. 

Pick.  70 ;  Richardson  v.  Maine  Ins. 
57* 


678  RISKS   COVERED.  [CHAP.  XIII. 

port  of  destination,  the  risk  of  seizure  and  condemnation  for  a  con- 
travention of  the  prohibition  is  covered  by  the  policy.-^ 

Ahhough  the  insurance  on  goods  is  with  a  warranty  "  against 
prohibited  trade,"  yet,  if  one  of  the  articles  named  in  the  policy  is 
well  known  to  be  prohibited  at  the  specified  port  of  destination, 
the  risk  of  seizure  for  contravention  of  the  prohibition  has  been 
held  by  Mr.  Justice  Washington  to  be  assumed  by  the  insurers. 
In  case  of  an  insurance  on  "  goods  or  specie  from  New  York  to 
Curacoa,  Nevitas,  Matanzas,"  and  back,  "  warranted  against  pro- 
hibited trade,"  the  specie  on  board  at  Matanzas  was  seized  there, 
the  exportation  of  this  article  from  that  port  being  well  known  to 
be  prohibited.     He  ruled  that  the  insurers  were  liable  for  the  loss.^ 

If  particular  importations  are  admitted  under  special  restrictions, 
the  underwriter  is  not  presumed  to  have  notice  that  a  prohibited 
trade  is  to  be  covered  by  the  policy :  ^ 

And  so,  also,  if  trade  is  sometimes  permitted  and  at  others  pro- 
hibited.^ 

A  cargo  being  insured  from  Boston  to  St.  Pierre  and  Mique- 
lon,  with  liberty  to  proceed  to  St.  John's,  in  Newfoundland,  the 
goods  were  seized  at  St.  John's,  because  the  importation  was  not 
directly  from  the  United  States,  the  vessel  having  first  visited 
another  British  colonial  port.  The  insurers  were  held  in  Massa- 
chusetts, by  Parker,  C.  J.,  and  his  associates,  not  to  be  liable.^ 

1118.  Where  a  loss  is  occasioned  hy  the  infringement  of  a  for- 
eign regulation,  without  any  fault  of  the  assured  or  his  agents,  and 
which  could  not  have  been  foreseen  or  prevented,  the  insurers  are 
answerable ;  this,  like  other  inevitable  losses  in  general,  is  at  their 
risk. 

This  was  determined  in  a  case  upon  a  policy  on  a  vessel  "  from 
Newburyport  to  every  port  or  place  to  which  she  might  proceed 
(excepting  the  West  Indies)  during  the  term  of  twelve  months  ; 

1  Parker  v.  Jones,  3  Mass.  R.  173  ;  3  Parker  v.  Jones,  13  Mass.  R.  173. 
Blagge  V.  N.  Y.  Ins.  Co.,  1  Caines,  *  Blagge  v.  N.  Y.  Ins.  Co.,  1  Caines, 
549  ;  Archibald  v.  Mercantile  lus.  Co.,     549. 

3  Pick.  70.  5  Archibald  v.  Mercantile  Ins.  Co., 

2  Seton   V.   Delaware   Ins.    Co.,    2     3  Pick.  70. 
Wash.  C.  C.  R.  175. 


SECT.  XI.]  RISKS  TEOM  PROHIBITED  AND  CONTRABAND  TRADE.     679 

it  being  understood  that  the  insurers  were  not  liable  for  any  loss 
or  expense  arising  from  the  violation  of  the  existing  laws  or  regu- 
lations of  any  of  the  belligerent  powers  restricting  neutral  com- 
merce." The  vessel  sailed  for  Amsterdam,  and  was  captured  on 
the  voyage  by  a  British  privateer  and  sent  into  Bristol,  whence, 
after  being  released,  she  sailed  for  Amsterdam,  and  arriving  off  the 
Texel  was  captured  by  a  French  privateer  as  she  was  about  tak- 
ing a  pilot  on  board  to  go  up  to  Amsterdam.  The  vessel  was 
libelled  for  having  sailed  for  Holland  after  having  been  carried  into 
England,  which  was  a  violation  of  the  Milan  Decree,  at  that  time 
in  force  in  Holland,  but  of  which,  it  being  then  recent,  the  captain 
had  no  knowledge.  The  decree  had  been  published  subsequently 
to  the  date  of  the  policy.  The  court  decided,  that  the  exception 
as  to  "  loss  and  expense  arising  from  existing  regulations  of  the 
belligerent  powers "  extended  only  to  regulations  existing  at  the 
time  of  making  the  policy,  and  accordingly  did  not  exempt  the 
underwriters  from  the  risk  under  the  Milan  Decree,  and  that  the 
insurers  were  answerable  for  the  loss.^ 

A  cargo  being  insured  from  Boston  to  Rio  Janeiro,  the  vessel, 
in  the  course  of  the  voyage,  put  into  some  port  on  the  coast  of 
Brazil  for  supplies,  where  she  was  seized,  and  being  carried  to 
Pernambuco  was  condemned,  together  with  her  cargo,  on  the 
ground  of  her  having  been  destined  to  Rio  Janeiro,  with  the  inten- 
tion of  trading  there  in  violation  of  the  Portuguese  laws.  It  was 
generally  known  in  the  United  States  that  all  trade  by  Americans, 
at  Rio  Janeiro,  was  prohibited  by  the  laws  of  Portugal ;  though 
American  vessels  frequently  cleared  for  that  port,  for  the  purpose 
of  illicit  trade. 

Mr.  Justice  Sedgwick,  giving  the  opinion  of  the  court,  said : 
"A  capture  for  illicit  trade  is  not  insured  against,  unless  the  risk 
be  expressly  or  impliedly  assumed."  But  the  court  seemed  to  be 
of  opinion  that  it  was  assumed  in  this  case,  and  held  that  the  in- 
surers were  liable  for  the  loss.^ 


1  "Wood  V.  New  England  Mar.  Ins.        ^  Pollock  v.  Babcock,  6  Mass.  E. 
Co.,  14  Mass.  R.  31.  234. 


680  RISKS   COVERED.  [CHAP.  XIII. 

1119.  Insurance  expressly  made  against  the  risk  of  the  contra- 
vention of  foreign  trade  laws  is  valid.^ 

1120.  Trade  in  violation  of  foreign  laws  is  sometimes  called 
contraband ;  and  so  also  is  trade  carried  on  in  violation  of  the 
laws  of  the  country  of  which  the  parties  are  subjects.  Contra- 
band trade  most  frequently  signijies  that  of  a  neutral  to  a  belli- 
gerent country,  in  arms  or  military  stores,  or  his  trade  in  any 
articles  to  a  blocJcaded  port,  or  besieged  town,  of  one  of  the  par- 
ties at  war.  These  are  the  two  kinds  of  trade  which  we  are  at 
present  considering  under  the  name  of  contraband.^ 

1121.  The  risk  arising  from  the  contraband  character  of  the 
goods  stands  upon  the  same  ground  with  that  arising  from  prohi- 
bited trade.  The  circumstance  of  the  goods  being  contraband 
may  expose  them,  and  also  the  ship,  to  seizure  and  detention. 
But  if  the  underwriter  has  not  notice  of  the  risk  of  contraband, 
though  he  insures  against  seizure  and  detention  generally,  he  is 
not  liable  for  seizure  or  detention  for  this  cause,  though  the 
policy  remains  valid  in  respect  of  other  risks? 

1122.  If  the  underwriter  has  notice  of  the  contraband  charac- 
ter of  the  trade,  he  is  liable  for  this  risk. 

The  liability  of  the  underwriter  for  the  risk  arising  from  the 
contraband  character  of  the  goods,  depends  upon  the  same  cir- 
cumstances as  his  liability  for  the  risk  occasioned  by  violating 
foreign  trade  laws.  If  it  appears  from  the  description  of  the  goods 
insured,  or  any  provision  in  the  policy,  or  from  the  circumstances 
under  which  the  voyage  is  commenced,  that  the  risk  arising  from 
the  contraband  character  of  the  property  insured  is  one  of  those 
contemplated  by  the  parties  as  the  subject  of  indemnity,  the  insur- 
ers will  be  answerable  for  losses  on  this  account. 

Insurance  was  made  on  goods  for  a  voyage  from  New  York  to 
Havana.     The  goods  insured  were  not  particularly  described  in 

1  llichardson  v.  l^Iaine  Ins.  Co.,  6  ted  contraband.     Pothicr,  Ins.,  n.  58 ; 

^lass.  11. 102 ;  and  sec  c.  10,  No.  908,  G  ]\Iass.  R.  112.    And  so  also  trade  in 

UIO.  violation  of  law.     Us  ct  Cout.  de  la 

'-Interloping  trade  in  contraven-  Mcr,  Pai't  III.  a.  G,  n.;  Marsh.  Ins.  78. 
lion  of  the  conimercial  regulations  of        3  Per  Parsons,  C.  J.,  llichardson  v, 

foreign  states  is  sometimes  denouiina-  IMainc  Ins.  Co.,  6  Mass.  R.  102. 


SECT.  XI.]  RISKS  FROM  PROHIBITED  AND  CONTRABAND  TRADE.     681 

the  policy,  nor  was  any  representation  made  to  the  insurers  as  to 
the  kind  of  goods.  The  sum  of  sixteen  thousand  dollars  was  in- 
sured generally  *'on  the  cargo,  not  warranted."  The  condition 
that  the  goods  were  "not  warranted,"  seemed  to  imply  that  the 
insurers  were  to  assume  some  risk  as  to  their  character,  and  this 
risk,  whatever  it  was,  seemed  to  relate  to  their  character  as  con- 
traband, for  the  goods  were  represented  to  be  the  property  of  par- 
ticular persons,  and  it  must  accordingly  have  been  known  whether 
they  were  neutral  or  not.  The  cargo  consisted  of  articles  the  im- 
portation of  which  at  Havana  had  been  declared,  by  a  proclamation 
of  the  governor,  to  be  permitted.  It  was  held  by  the  Supreme 
Court  in  New  York,  that  the  insurers  were  liable  for  the  seizure 
of  the  goods  on  account  of  the  importation  being  in  alleged  con- 
travention of  law.i 

The  judges  who  gave  opinions  in  the  case  just  referred  to  as- 
sumed, very  distinctly,  that,  if  the  insurer  is  informed  by  the  policy, 
or  otherwise,  what  kind  of  goods  he  insures,  he  takes  the  risk  of 
their  being  seized  and  condemned  as  contraband,  unless  this  risk 
is  unnecessarily  incurred  or  enhanced  by  the  fault  of  the  assured, 
or  of  those  for  whose  conduct  he  is  answerable. 

This  doctrine  was  subsequently  recognized  by  the  same  court,^ 
and  was  adopted  and  confirmed  by  the  Court  of  Errors  in  the 
same  State. ^  It  is  a  consequence  of  this  doctrine  distinctly  ac- 
knowledged in  the  cases  just  referred  to,  that,  if  it  appears  by  the 
policy  or  otherwise,  that  the  insurer  waives  being  informed  of  the 
kind  of  goods  insured,  and  so  waives  the  right  of  taking  any  excep- 
tion on  this  account,  he  assumes  the  risk  arising  from  their  being 
considered  contraband  ;  it  being  understood,  no  doubt,  that  the 
loss  on  account  of  contraband  is  not  occasioned  by  the  fault  of  the 
assured. 

The  courts  in  Massachusetts  and  New  York  have  assumed  that 
neutrals  may  lawfully  trade  to  a  blockaded  port,  or  supply  either 
belligerent  with  munitions  of  war.     Some  doubt  has  been  expressed 


1  Seton  V.  Low,  1  Johns.  Cas.  1.  3  Rhinelander  v.  Juhel,  2  Johns. 

2  Skidmore   i\  Desdoity,  2  Johns.     Cas.  487. 
Cas.  77  ;  Juhel  v.  Rhinelander,  id.  120. 


682  RISKS   COVERED.  [CHAP.  XIII. 

respecting  this  doctrine;  but  admitting  it  to  be  correct,  the  only- 
question,  in  determining  whether  the  insurer  is  answerable  for  the 
risk  on  account  of  contraband,  is,  whether  he  was  informed  by  the 
policy,  or  by  express  representations,  or  is  to  be  presumed  to 
know  in  any  other  way,  what  kind  of  goods  were  insured,  or  any 
circumstances  in  the  knowledge  also  of  the  assured,  which  might 
expose  the  property  to  detention  or  seizure  as  contraband  of  war. 
This  makes  it  a  question  of  representation  in  one  sense  ;  thai  is, 
if  the  insurers  have  no  ground  to  object,  on  account  of  the  con- 
cealment or  misrepresentation  of  facts,  they  assume  the  risk  arising 
from  contraband,  so  far  as  it  is  not  necessarily  superinduced  by 
the  assured.  But  according  to  Chief  Justice  Parsons's  view  of  this 
subject,  taken  in  connection  with  the  doctrine  adopted  in  New 
York,  it  is  not,  in  the  ordinary  sense,  a  question  of  representation 
and  concealment ;  for  he  says  that  the  policy  is  not  void,  but  that 
the  risk  of  contraband  remains  with  the  assured.  And  this  seems 
to  be  the  better  doctrine  in  the  absence  of  all  fraud,  as  has  previ- 
ously been  suggested.^ 

As  the  insurers  are  held  to  assume  the  risk  arising  from  the  cir- 
cumstance of  the  goods  being  in  fact  contraband,  provided  there  is 
no  misrepresentation,  or  concealment,  or  other  fault  of  the  assured, 
there  is  still  stronger  reason  why  they  should  be  answerable  for 
losses  by  the  seizure  of  the  property  as  contraband,  when  it  is 
really  not  so.  Accordingly,  in  case  of  the  condemnation  of  pro- 
perty for  a  violation  of  a  blockade,  when  there  was  in  fact  no 
legal  existing  blockade,  the  insurers  were  held  to  be  liable  for  the 
loss.2 

1123.  A  ship  which  carries  articles  contraband  of  war,  under 
false  papers  and  a  false  destination,  is  held  to  be  liable,  together 
with  her  cargo  on  board,  to  seizure  and  condemnation  by  a  belli- 
gerent, after  having  delivered  the  contraband  articles,  being  yet 
on  the  same  adventure,  whether  outward  or  homeward,  and  whe- 
ther the  cargo  on  board  at  the  time  of  the  capture  be  or  be  not 
the  proceeds  of  the  contraband  articles  ;  ^  therefore, 

1  Supra,  No.  978.  3  Carrington  v.  ^Merchants'  Ins.  Co., 

2  .Sawyer  r.  Maine  Fire  &  Mar.  Ins.     8  Pctcrs's  !Sup.  Ct.  K.  iOd. 
Co.,  12lklas3.  K.  291. 


SECT.  XII.]  OTHER   PERILS.      GENERAL   CLAUSE.  G83 

Underwriters  on  the  ship  and  freight  are  not  liable  for  loss  by 
seizure  for  carrying  contraband  goods  in  disguise,  unless  their  con- 
sent is  shown  to  the  disguise,  and  they  agree  to  be  answerable  not- 
withstanding. 

1124.  If  war  is  declared  after  the  risk  has  begun,  the  under- 
writers are  liable  for  the  n'sZ:  of  capture  or  seizure  for  contraband 
trade  until  the  assured  or  his  agents  have  notice  of  the  war,  and 
are  in  fault  in  still  prosecuting  the  voyage  afterwards.  In  other 
words,  as  before  said,^  the  insurer  is  liable  for  the  enhancement  of 
the  perils  insured  against,  without  the  fault  of  the  assured,  after 
the  risk  has  once  begun. 


SECTION    XII.       OTHER    PERILS.       GENERAL    CLAUSE. 

1125.  The  preceding  risks  are  specifically  enumerated  in  the 
common  form  of  the  policy.  Although  the  indemnity  thus  stipu- 
lated is  very  comprehensive,  the  parties  in  some  instances  enume- 
rate other  particular  risTcs,  or  specify  the  kind  of  damage  arising 
from  the  usual  risks  for  which  indemnity  shall  be  made. 

Insurance  was  made  in  England  on  the  expenses  of  a  voy- 
age, or  in  effect  upon  the  freight,  with  a  stipulation,  "  that,  if  the 
ship  should  not  load  a  cargo  at  Riga  by  the  act  of  the  Russian 
government,  the  assured  were  to  receive  a  total  loss."  ^ 

A  license  of  trade  from  the  enemy  was  insured,  in  Massachu- 
setts, among  other  risks,  "  against  its  being  destroyed  or  rendered 
useless  by  the  ordinary  perils  of  the  seas,  fire,  or  otherwise,"  and 
it  was  rendered  useless  by  being  indorsed  by  a  British  officer,  who, 
in  the  course  of  the  voyage,  boarded  the  vessel  on  board  of  which 
it  was  insured ;  and  this  was  held  to  be  a  loss  within  the  policy .^ 

1126.  The  general  clause  against  all  other  risks  and  perils 
'covers  other  perils  of  a  like  kind  to  those  specified. 

After  the  enumeration  of  the  particular  risks,  the  policy  usually 
contains  a  general  clause,  by  which  the  subject  is  insured  against 
"  all  other  perils,  losses,  and  misfortunes  which  shall  come  to  the 


1  Supra,  s.  6.  3  Perkins  v.  New  England  Mar.  Ins. 

2  Bell  V.  Bell,  2  Camp.  475.  Co.,  12  Mass.  K.  214. 


684  RISKS    COVERED.  [CHAP.  XIII. 

hurt,  detriment,  or  damage  of  the  said  goods,  or  ship,  he,  or  any 
part  thereof."  This  is  the  old  form  of  the  clause  which  is  now 
used  in  the  greater  number  of  policies ;  but  in  some,  the  expres- 
sion is,  "  all  other  losses,  &;c.,  for  which  the  insurers  are  liable, 
according  to  the  rules  and  customs  of  insurance,"  in  the  place 
where  the  policy  is  made ;  others  say,  "  all  other  losses,  &c.,  for 
which  the  insurers  are  legally  accountable." 

Lord  Ellenborough  says  :  "  The  general  words,  *  all  other  pe- 
rils, losses,  and  misfortunes,'  he,  have  not  yet  been  the  immediate 
subject  of  any  judicial  construction  in  our  courts  of  law.  As  they 
must,  however,  be  considered  as  introduced  into  the  policy  in  fur- 
therance of  the  objects  of  marine  insurance,  and  may  have  the 
effect  of  extending  reasonable  indemnity  to  many  cases  not  dis- 
tinctly covered  by  the  special  words  ;  they  are  entitled  to  be  con- 
sidered as  material  and  operative  words,  and  to  have  their  due 
effect  assigned  to  them  in  the  construction  of  this  instrument ;  and 
which  will  be  done  by  allowing  them  to  comprehend  and  cover 
other  cases  of  marine  damage  of  the  like  kind  with  those  specially 
enumerated  and  occasioned  by  similar  causes."  i 

In  case  of  dollars  being  thrown  overboard,  to  prevent  their 
falling  into  the  hands  of  the  enemy,  when  the  ship  was  captured, 
the  judges  thought  the  insurers  liable  under  this  general  clause, 
as  capture  was  one  of  the  enumerated  perils,  and  this  loss  was  in- 
cidental to  it,  or  ejusdem  generis.^ 

Damage  by  being  fired  into  through  mistake  was  brought  under 
the  same  clause,  as  being  ejusdem  generis  with  the  perils  of  the 
seas.3 

A  ship  being  insured  for  twelve  months  "at  sea  and  in  port," 
during  that  time,  at  the  harbor  of  St.  John's,  in  New  Brunswick, 
was  in  consequence  of  the  violence  of  the  winds  blown  over  on 
her  side  wliile  in  a  graving-dock,  and  thereby  bilged.  It  was 
held  that  the   underwriters  were  liable,  this  being  a  peril  ejusdem 


1  Cullcn  V.  Butler,  5  M.  &  S.  461 ;         3  Cullon  r.  Butler,  Park,  105  ;  S.  C, 
and  see  Euierigon,  c.  12,  s.  1  and  2.       cited  3  B.  &  A.  403 ;  S.  C,  5  M.  &  S. 
8  Butler  V.  Wildman,  3  B.  &  A.  398.    461 ;  S.  C,  1  Stark.  138. 


SECT.  XII.]  OTHER   PERILS.      GENERAL   CLAUSE.  685 

generis  with  those  enumerated  in  the  policy. ^  A  similar  decision 
was  given  in  case  of  a  ship  being  blown  over  on  her  side  while 
hauling  up  on  a  marine  railway,  being  still   partly  water-borne.^ 

Under  an  insurance  declared  in  the  policy  to  be  "upon  the 
freight  bill"  of  a  steamboat,  it  was  held  in  Missouri  to  be  an  in- 
surance that  the  vessel  should  be  in  a  condition  to  earn  freight.^ 

A  loss  on  a  steamboat  by  collision,  through  fault  of  the  master 
and  mariners  of  another  boat,  was  held  in  Louisiana  to  be  covered 
under  the  clause  "  all  other  losses  according  to  the  general  laws 
of  insurance,"^  though  it  seems  that  it  would  be  so  under  "  perils 
of  the  river,"  usually  inserted  in  the  policies  on  the  trade  in  the 
Mississippi  and  Ohio. 

Where  the  written  part  of  the  policy  contained  a  clause  by 
which  the  insurance  was  declared  to  be  "  against  all  risks,"  the 
court  in  New  York  said  :  "  This  expression  is  vague  and  indefi- 
nite, but  if  we  allow  it  any  force  it  must  be  considered  as  erecting 
a  special  insurance  and  extending  to  other  risks  than  are  usually 
contemplated.  We  are  inclined  to  apply  it  to  all  losses  except 
such  as  arise  from  the  fraud  of  the  assured."  ^ 

Taking  the  whole  policy,  in  the  common  form,  together,  then, 
and  construing  the  clause  in  question  in  connection  with,  and  in 
reference  to  the  other  parts,  it  is  understood  to  cover  merely  perils 
similar  to  those  specified,  although  they  may  not  come  precisely 
within  them  ;  for  if  any  narrower  construction  is  given,  and  the 
clause  is  considered  to  apply  only  to  perils  of  the  same  kind,  this 
is  in  effect,  obliterating  the  clause. 

But  where  the  clause  is  in  the  written  part,  which  has  a  par- 
amount force,  as  we  have  seen,  the  fair  construction  seems  to  be 
nothing  short  of  that  adopted  in  New  York ;  namely,  all  perils 
that  can  be  legally  covered. 


1  Phillips  V.  Barber,  5  B.  &  A.  161.  4  Caldwell  v.  St.  Louis  Perpetual 

2  EUery  v.  New  England  Ins.  Co.,  Ins.  Co.,  1  La.  Annual  R.  85. 

8  Pick.  14.  5  Goix  v.  Knox,  1  Johns.  Cas.  337. 

3  Field  V.  Citizens'  Ins.  Co.,  11  Mis-  See  also  Skidmore  v.  Desdoity,  2  id. 
souri  R.  50.  77. 

VOL.  I.  58 


686  RISKS    COVERED.  [CHAP.  XIII. 


SECTION    XIIT.       LOSS    FROM    FEAR    OF    PERILS. 

1127.  The  subject  of  this  section  has  been  considered  in  a  pre- 
ceding one/  and  it  is  not  proposed  to  go  into  the  investigation  of 
it  again,  or  to  recapitulate  the  cases  here,  but  merely  to  present 
it  in  a  manner  more  marked  and  conspicuous.  The  use  of  the 
term  "  quia  timet  "  has,  it  seems  to  me,  served  merely  to  intro- 
duce the  erroneous  notion,  that  insurers  are  not  liable  for  losses 
and  sacrifices  incurred,  and  risks  run,  justifiably,  through  fear  of  an 
imminently  impending  peril,  or  one  inevitably  awaiting  the  subject 
in  the  remote  stages  of  the  voyage  insured,  which  notion  seems  to 
be  plainly  contradictory  to  established  and  habitual  jurisprudence, 
and  inconsistent  with  the  fundamental  principles  and  leading  pur- 
pose of  insurance,  and  contrary  to  expediency  and  equity. 


SECTION  XIV.  REMOTE  AND  CONSEQ,UENTIAL  LOSSES.  CONCUR- 
RENCE OF  DIFFERENT  PERILS.  LOSS  UPON  ONE  SUBJECT  BY 
DAMAGE  TO  ANOTHER. 

1128.  It  is  necessary  to  discriminate  ivhat  losses  are  included 
under  any  particular  peril  in  all  forms  of  policies,  since  some 
perils  are  left  at  the  risk  of  the  assured  in  every  policy,  as  we  have 
seen,  and  the  same  party  is  not  unfrequently  insured  by  different 
companies  against  the  different  risks  on  the  same  subject,  as  against 
capture  by  one,  and  against  sea  perils  by  another. 

So,  also,  where  successive  policies  are  made,  the  question  some- 
limes  arises  whetiier  a  loss  is  under  the  prior  or  subsequent  policy. 

So,  a  discrimination  is  to  be  made  of  the  risks  to  be  run,  by  the 
respective  parties  to  tiie  policy,  in  case  of  the  exception  of  risks  for 
a  certain  time,  or  in  a  certain  locality. 

1129.  A  peril  includes  its  direct  effects  or  results,  as  contra- 
distinguished from  those  that  are  remote,  or  merely  collateral  or 
incidental. 

The  loss  of  the  amount  advanced   for  shipping  coolies  from 

1  See  supra,  Ko.  1115,  and  infra,  No.  1115. 


SECT.  XIV.]        REMOTE   AND    CONSEQUENTIAL   LOSSES.  687 

China  to  Peru,  by  their  mutinying  and  running  away  with  the 
ship,  was  held  to  be  a  direct  effect  of  the  piracy.^ 

Thus,  where,  by  the  terms  of  a  poHcy  on  slaves,  the  insurers 
were  liable  for  "mortality  by  mutiny,"  and  some  of  the  slaves 
were  killed  at  the  time  of  a  mutiny  by  being  fired  upon,  others 
afterwards  died  of  their  wounds,  and  others  chose  a  voluntary 
death  by  fasting,  or  died  through  despair,  and  the  sale  of  the  sur- 
vivors was  injured,  and  the  price  of  them  reduced,  by  the  circum- 
stance of  the  mutiny  having  taken  place,  Lord  Mansfield  instructed 
the  jury  that  the  underwriter  was  liable  for  the  loss  of  those  killed 
during  the  mutiny,  and  also  of  those  who  afterwards  died  in  con- 
sequence of  their  wounds;  but  he  said,  "I  think  the  underwriter 
is  not  answerable  for  the  loss  of  the  market,  —  that  is  a  remote 
consequence;"  and  he  was  of  opinion,  also,  that  the  underwriter 
was  not  answerable  for  the  loss  of  such  as  died  by  fasting,  or 
through  despair.^ 

So,  where  a  voyage  was  unusually  prolonged  by  bad  weather 
and  contrary  winds,  and  thereby  the  ship  came  to  be  short  of 
water  and  provisions,  and  on  this  account  a  part  of  the  slaves 
were  thrown  overboard,  this  was  held  not  to  be  a  loss  by  perils  of 
the  seas,  for  the  loss  was  not  a  direct  consequence  of  those  perils,^ 
but  arose  from  the  insufficiency  of  the  supply  of  water,  and  this 
supply,  with  all  the  consequences  of  any  deficiency,  was  a  matter 
belonging  wholly  to  the  assured,  though  the  voyage  should  be  pro- 
tracted. 

Insurers  are  not  liable  for  mould  or  discoloration  of  goods  by 
mere  dampness,  without  any  contract  with  salt  water,  or  any  ex- 
traordinary degree  of  any  peril  insured  against.^ 

The  enhanced  expense  of  the  repairs  of  damage  by  perils  insured 
against,  occasioned  by  the  necessity  of  repairing  at  a  port  not  the 
most  economical  for  the  purpose,  is  at  the  risk  of  the  underwriter; 

1  Naylor  v.  Palmer,  cited  supra,  No.  ^  Tatham  v.  Hodgson,  6  T.  R.  656. 
1106.  4  Baker  v.  Manufacturers'  Ins.  Co., 

2  Jones  V.  Schmoll,  Park,  97;  1  T.  Mass.  Sup.  Jud.  Ct.,  Suffolk,  1851. 
R.  130,  n.  See  also  2  Valin,  tit.  Ins.,  Where  tlie  damage  is  owing  to  bad 
a.  11,  15 ;  Emerigon,  c.  12,  s.  10;  Potli.  stowage,  the  ship-owner  is  liable. 

tit.  Ins.,  No.  66,  Estrangin's  note. 


688  RISKS    COVERED.  [CHAP.  XIII. 

So  it  is  if  tlie  master,  without  any  fault  of  the  owner,  can  raise 
the  requisite  funds  only  on  disadvantageous  terms  ;i 

And  so  is  plunder  on  shore  after  shipwreck,  as  a  direct  conse- 
quence of  the  shipwreck  ;  ^ 

Damage  to  goods  insured  against  fire  by  being  wetted  in  extin- 
guishing the  fire  :  ^ 

Plunder  of  goods  insured  against  fire,  on  their  being  removed  to 
save  them  from  being  burnt,  and  being  thus  put  out  of  the  control 
of  the  assured  ;^ 

Expense  and  damages  by  removing  goods  insured  against  fire, 
to  save  them  from  being  burnt  ;^ 

And  so  is  the  expense  of  getting  a  stranded  ship  afloat ;  ^ 

And  so  is  the  aggravation  of  a  loss  by  fault  of  the  underwriter, 
as  by  neglect  of  the  reinsurer,  on  notice  of  a  claim  upon  the  ori- 
ginal insurer,  to  consent  to  the  payment  of  loss,  without  the  ex- 
pense of  contesting  it,  in  a  case  where,  without  such  consent,  the 
original  insurer  is  justified  in  contesting  the  claim  ; ''' 

And  so  is  the  aggravation  of  a  subsequent  peril  by  the  effects 
of  a  previous  one,  as  the  subsequent  loss  of  the  boat  from  the 
stern-davits  in  consequence  of  a  ship  being  crippled  in  a  storm.^ 

Where  a  ship  and  cargo  insured  from  the  United  States  to  Great 
Britain  were  detained  at  the  port  of  departure  by  an  embargo, 
before  the  expiration  of  which,  war  w^as  declared  against  Great 
Britain,  it  was  held  that  the  underwriters  were  not  liable  for  a 
total  loss,  as  "  the  declaration  of  war  was  in  no  sense  a  conse- 
quence of  the  embargo."^  And  the  policy  did  not  cover  the  risk 
of  the  loss  of  the  voyage  on  the  cargo  by  the  declaration  of  war,  in- 
dependently of  the  intervention  of  a  peril  expressly  insured  against. 


1  Furncaux  v.  Bradley,  Park,  257 ;  5  Supra,  No.  1098,  1098  a. 
Patrick  v.  Commercial  Ins.  Co.,  11  ^  1  IMagcns,  p.  76,  s.  G4. 

Johns.  9 ;  Peters  v.  I'bcenix  Ins.  Co.,  "^  Ilastie  v.  Dc  Peyster,  3  Caines, 

3  Scrg.  &  R.  25,  and  cases  passim.  190. 

2  Bondrct  v.  Ilcntipg,  1  Holt,  149  ;  S  Pcr  Story,  J.,  Potter  v.  Ocean  Ins. 
Stevens  on  Average,  l."}.");  Potli.  Ins.,  Co.,  3  Sumner,  27. 

n.  55;  and  see  supra,  No.  1 1<)7.  »  Delano  v.  Bedford  Mar.  Ins.  Co., 

y  Supra,  No.  1098  a.  10  Mass.  II.  347. 
*  Supra,  No.  1098. 


SECT.  XIV.]        RExMOTE    AND    CONSEQUENTIAL   LOSSES.  689 

A  cargo  being  insured  from  New  York  to  Havre  de  Grace,  the 
ship  was  arrested  and  carried  into  England,  where  she  was  de- 
tained till  after  the  port  of  Havre  was  declared  by  the  English 
government  to  be  in  a  state  of  blockade.  After  the  declaration  of 
blockade,  the  ship  and  the  goods  insured  were  released,  but  the 
ship  could  not  proceed  to  the  port  of  destination  on  account  of  the 
blockade.  The  court  said  that  the  assured,  to  entitle  himself  to 
recover  for  a  total  loss,  must  show  "that  a  loss  of  the  voyage  was 
occasioned  by  the  detention;"  and  they  were  of  opinion,  that 
"the  impossibility  of  prosecuting  the  voyage,  which  arose  during, 
and  in  consequence  of,  the  detention,  might  be  properly  consi- 
dered a  loss  of  the  voyage."  ^ 

Under  a  policy  on  goods  from  Philadelphia  to  Antwerp,  the 
ship  was  captured  by  a  British  privateer  and  carried  into  Ply- 
mouth, but  was  soon  released  and  permitted  to  proceed ;  she  was 
however  prohibited  entry  at  Antwerp,  on  account  of  having  been 
thus  detained  by  a  British  vessel  and  carried  into  Plymouth. 
Chief  Justice  Tilghman  and  Brackenridge,  J.,  were  of  opinion, 
upon  the  authority  of  the  above  case,  that  the  loss  of  the  voyage 
—  that  is,  the  prohibition  of  entry  at  Antwerp — was  a  conse- 
quence of  the  capture  and  detention,  which  were  insured  against.^ 

The  distinction  of  the  two  cases  last  referred  to  and  the  pre- 
ceding one  is,  that  in  these  the  loss  of  the  voyage  was  by  foreign 
interposition,  which  did  not  render  the  voyage  illegal ;  whereas, 
in  the  preceding  case,  the  voyage  was  rendered  illegal  by  the  de- 
claration of  war. 

Insurance  of  a  building  against  damage  by  fire  does  not  cover  a 
loss  by  interruption  of  business  while  the  damage  by  fire  is  repair- 
ing-^ 

If,  after  a  storm  has  subsided,  the  boat  is  lost  by  reason  of  the 

disabled  state  of  the  ship  in  consequence  of  damage  done  during 
the  storm,  it  is  a  loss  by  the  storm."* 


1  Barker  v.  Blakes,  9  East,  283.  Co.,  1  Sandf.  N.  Y.  City  Sup.  Ct.  R. 

2  Savage    v.  Pleasants,  5  Binney,  551. 

403.  4  Potter  v.  Ocean  Ins.  Co.,  3  Sum- 

3  Niblo  V.  North  American  Fire  Ins.  ner,  27.     In   this  case  ]Mr.  Justice 

58* 


690  RISKS    COVERED.  [CHAP.  XIII. 

All  salvage  expenses  consequent  on  the  operation  of  a  peril  in- 
sured against  are  covered. ^ 

A  ship  being  wrecked  at  the  Isle  of  France,  the  consul  there, 
through  mistake  of  the  law,  paid  the  crew  extra  wages  for  three 
months.  Parker,  C.  J.,  and  his  associates,  held  that  the  insurers 
were  not  liable  for  this  item  of  loss.^ 

In  case  of  a  vessel  having  some  slaves  on  board  being  wrecked 
on  a  foreign  coast,  in  consequence  whereof  they  were  set  at  liberty 
on  habeas  corpus,  the  insurers  of  them  were  held  liable  for  the  loss 
in  South  Carolina.*^ 

1130.  Whether  the  insurers  are  liable  for  a  loss  in  case  of  the 
cause,  being  a  peril  insured  against,  occurring  within  the  period  of 
the  risk,  and  its  effect  occurring  after  the  expiration  of  that  period, 
is  subsequently  considered.^ 

1131.  Insurance  against  or  an  exception  of  a  peril  may,  be- 
sides the  consequences  immediately  folloiving  it,  include  also  a  loss 
or  expense  arising  on  account  of  it,  although  ivhat  is  insured 
against  or  excepted  does  not  actually  occur,  provided  the  peril  in- 
sured against  or  excepted  is  the  efficient  acting  or  imminent  cause 
or  occasion  of  the  loss  or  expense. 

Thus,  a  policy  "  free  from  loss  by  illicit  trade  with  the  Spa- 
niards," has  been  held  to  except  legal  "  seizures  to  prevent  illicit 
traffic,  as  well  as  seizures  to  punish  it."  ^ 

1132.  The  commonplace  maxim,  that,  in  cases  of  doubt  to 
which  of  two  or  more  perils  a  loss  is  to  be  assigned,  Causa  prox- 
ima  non  remota  spectatur,  has  been  not  unfrequently  resorted  to, 
by  which  was  meant,  originally  at  least,  that  a  loss  is  to  be  attri- 
buted to  the  peril  in  activity  at  the  time  of  the  ultimate  catastro- 
phe, when  the  loss  is  consummated.''  But  much  of  the  jurispru- 
dence is  contradictory  to  the   maxim  taken  in  this  sense,  and  it 

Story  remarks  that  the  rule,  Causa  3  Simpson  i».  Charleston  Fire  &  Mar. 

proxima  spectatur,  docs  not  apply;  to  Ins.  Co.,  Dudley's  R.  239. 

which  it  may  be  added,  that  the  case  ■*  See  infra,  s.  15. 

shows  the  fallaciousness  of  tliat  rule.  ^  Higginson  v.  Pomcroy,  11  Mass. 

•  Cox  V.  May,  4  M.  &  S.  ir,2.  R.  104. 

2  JJodgc  V.  Union  Mar.  Ins.  Co.,  1 7  o  See  supra,  No.  1097, 1098, 1098a., 

Mass.  li.  471.  and  cases  there  cited. 


SECT.  XIV.]        REMOTE   AND    CONSEQUENTIAL   LOSSES.  691 

seems  to  have  served  rather  to  divert  attention  from  the  proper  in- 
quiry and  to  becloud  instead  of  elucidating  the  subject. 
I  understand  the  result  of  the  jurisprudence  to  be,  that, 
In  case  of  the  concurrence  of  different  causes,  to  one  of  which 
it  is  necessary  to  attribute  the  loss,  it  is  to  be  attributed  to  the 
efficient  predominating  peril,  whether  it  is  or  is  not  in  activity  at 
the  consummation  of  the  disaster. 

1133.  The  cases  of  concurring  perils,  where  all  arc  insured 
against,  do  not  come  ivithin  our  •present  inquiry,  the  only  question 
in  such  cases  being  the  technical  one,  declaring  for  the  loss  in  a 
suit  upon  the  policy. 

1134.  In  every  insurance,  the  risk  on  each  peril  is  liable  to  be 
affected  by  every  other  peril,  and  the  party,  whether  insurer  or 
assured,  at  whose  risk  a  peril  is,  must  bear  the  loss  by  such  peril 
though  it  may  have  been  indirectly  and  incidentally  enhanced  by 
another,  for  ivhich  he  is  not  anstverable,  where  there  is  no  express 
or  implied  stipulation,  obligation,  or  condition  against  the  subject 
being  exposed  to  such  other  peril  ;  but  where  the  loss  is  by  a  risk 
insured  against  that  is  enhanced  by  a  peril  to  which  the  subject  is 
exposed  in  violation  of  the  express  or  implied  stipulations  of  the 
parties,  the  underwriter  is  not  liable  for  it. 

This  principle  is  to  be  borne  in  mind  in  discriminating  between 
the  losses  by  different  perils,  and  between  the  direct  and  remote 
consequences  of  a  peril. 

Thus,  under  a  policy  in  the  ordinary  form,  the  assured  must 
bear  the  loss  arising  from  the  qualities  of  the  article  insured,  with- 
out any  direct  action  of  the  perils  insured  against,  as  those  of  the 
sea  or  others,  upon  the  specific  subject  of  the  contract.  Accord- 
ingly, where  a  vessel  was  compelled  by  sea-damage  to  put  into 
Martinique  to  repair,  for  which  purpose  it  was  necessary  to  dis- 
charge the  cargo,  a  part  of  which  consisted  of  porter  and  claret, 
these  articles,  being  liable  to  be  spoiled  by  the  heat  of  the  climate, 
were  necessarily  sold  on  this  account.  The  loss  from  the  neces- 
sity of  selling  the  porter  and  claret  was  held  not  to  be  such  a  con- 
sequence of  the  perils  of  the  seas,  by  which  the  vessel  had  been 
damaged,  as  to  render  the  insurers  of  these  articles  liable  for  this 


692  RISKS    COVERED.  [CIIAP.  XIII. 

loss.^  The  loss  arose  from  the  action  of  the  cHmate  on  the  arti- 
cles, and  as  this  was  a  damage  at  the  risk  of  the  assured,  he  was 
not  the  less  liable  for  it  because  it  had  been  indirectly  and  inci- 
dentally aggravated  by  the  delay  occasioned  by  the  perils  of  the 
seas  which  were  insured  against,  for  both  parties  contemplated 
that  the  ship  and  cargo  were  to  be  exposed  to  those  perils,  and 
each  must  be  answerable  for  his  own  risk  through  the  unavoidable 
prolongation  of  the  adventure,  whether  for  a  longer  or  shorter 
period. 

So,  in  case  of  a  vessel  putting  in  at  Cadiz  for  repairs,  and  being 
there  delayed  on  account  of  an  epidemic,  and  loss  thereupon  en- 
sued ;  as  "  the  pestilence  formed  a  sound  excuse  for  delay  at 
Cadiz,"  the  underwriter  was  held  to  be  answerable  for  the  subse- 
quent loss  there  by  the  perils  insured  against,  though  but  for  such 
delay  the  subject  would  not  have  been  exposed  to  such  loss.^ 

1135.  The  effect  of  a  loss  of  one  subject  is  a  loss  on  another 
in  divers  cases. 

As  a  total  loss  of  the  ship,  by  its  being  rendered  innavigable 
in  an  intermediate  stage  of  the  voyage,  is  a  total  loss  of  the  cargo 
and  freight  by  the  loss  of  the  voyage,  where  there  are  no  means 
of  forwarding  the  cargo  to  the  port  of  destination,  as  we  shall  see 
in  the  chapter  upon  total  loss  and  abandonment. 

The  underwriters  on  the  ship  are  not  liable  for  its  expenses^  by 
delay  for  the  purpose  of  claiming  the  cargo  in  case  of  capture.^ 

1136.  In  case  of  the  concurrence  of  two  causes  of  loss,  one  at 
the  risk  of  the  assured  and  the  other  insured  against,  or  one  insured 
against  by  A  and  the  other  by  B,  if  the  damage  by  the  perils  re- 
spectively can  be  discriminated,  each  party  must  bear  his  proportion. 

This  proposition  seems  to  be  too  obvious  to  need  authority  or 
comment,  but  a  diflerent   rule   was  acted  upon  by  Lord  Ellenbo- 

1  Goold  V.  Sliaw,  1  Johns.  Cas.  293  ;  thus  incidentally  and  remotely  occa- 
2  id.  442.  sioned  by  the  delay,  but  directly  by 

2  Williams  v.  Smith,  2  Caincs,  13.     the  perils  insured  against. 

Mr.  Justice  Kent  is  reported  to  have  3  Bradfbi-d  v.  Levy,  1  Ry.  &  Mood, 

said,  "The  damage  resulting  from  tlic  331;  and  sec  Baillie  v.  Moudigliani, 

delay  at  Cadiz  is  covered  by  the  poli-  Park,  90;  S.  C,  Marsh.  Ins.,  2d  ed. 

cy,"  meaning,  of  course,  the  damage  728. 


SECT.  XIV.]         REMOTE   AND    CONSEQUENTIAL   LOSSES.  693 

rough,  C.  J.,  and  Grose,  Le  Blanc,  and  Bayley,  Justices,  in  case 
of  a  policy  upon  a  ship  from  New  York  to  London,  in  1809,  "  free 
from  American  condemnation,"  the  voyage  being  intended  as  an 
evasion  of  the  American  embargo.  The  ship,  having  been  pre- 
vented from  escaping  by  running  upon  the  rocks  in  attempting  to 
go  out  of  the  liarbor  of  New  York  during  the  night,  was  tliereupon 
seized  on  the  following  day,  and  subsequently  condemned  for  a 
violation  of  the  embargo.  The  question  was,  whether  the  London 
underwriters  were  liable  for  the  loss  by  the  sea-damage.  It  was 
held  that  they  were  not  so.  Lord  Ellenborough,  repeating  the 
maxim.  Causa  proxinia  spectatur,  remarked,  in  giving  the  opinion 
of  the  court,  that  "  it  seemed  to  be  useless  to  be  seeking  about  for 
odds  and  ends  of  previous  and  partial  losses  which  might  have 
happened  in  the  course  of  the  voyage,  when  there  was  one  over- 
whelming cause  of  loss  which  swallowed  up  the  whole  subject- 
matter."  1 

This  decision  is  surely  wrong,  as  intimated  by  another  eminent 
English  judge.^  And  it  has  been  the  precedent  for  another  in 
Massachusetts,  no  less  subject  to  objection  ;  where,  under  a  policy 
upon  the  ship  and  cargo  exempt  from  capture,  after  jettison  of  a 
third  part  of  the  cargo  in  a  storm,  the  vessel,  having  been  da- 
maged by  the  perils  of  the  seas  to  three  fourths  of  its  value,  and 
so  as  not  to  be  worth  repairing,  was  captured.  The  underwriters 
were  held  to  be  liable  for  the  part  of  the  cargo  jettisoned,  but  not 
for  the  damage  to  the  ship  ;  the  court  remarking,  that  they  had 
not  come  to  this  conclusion  "without  much  hesitation,  because 
technical  rules  only  seemed  to  prevent  the  assured  from  recover- 
ing." 3  By  "  technical  rules  "  the  court  refers  to  the  case  above 
referred  to,  decided  by  the  English  Court  of  K.  B.^  which  seems 
rather  to  need  support  than  to  suffice  for  the  support  of  another. 


1  Livie  V.  Janson,  12  East,  648.  Smith,  3  Johns.  Cas.  16;  and  Law- 

2  Best,  C.  J.,  speaking  of  Livie  v.  rence  v.  Aberdein,  5  B.  &  A.  107. 
Janson,  says:  "In  that  case,  perhaps,  ^  Rice  v.  Homer,  12  Mass.  R.  230. 
the  facts  would  have  warranted  the  ^  Livie  v.  Janson,  ut  supra.    Green 
statement  of  a  total  loss."     Hahn  v.  v.  Elmslie,  Peake,  212,  is  also  refer- 
Corbett,  2  Bing.  205 ;  and  see  Coit  v.  red  to,  where,  under  a  policy  against 


694  EISK5    COVERED.  [CHAP.  XIII. 

In  case  of  injury  to  a  steamboat  by  striking  the  sunken  wreck 
of  another  in  the  Mississippi,  and  subsequent  stranding  and  total 
loss  of  it  in  consequence  of  the  injury,  the  court  in  Ohio,  consider- 
ing the  insurers  not  to  be  liable  for  a  total  loss,  adjudged  them  to 
be  liable  for  the  damage  by  the  injury  ;  ^  which  is  certainly  a 
right  decision,  assuming  that  they  were  not  liable  for  the  eventual 
stranding  and  sinking ;  but  as  these  were  a  direct  consequence  of 
the  striking,  the  better  decision,  it  seems  would  have  been,  that 
the  underwriters  were  liable  for  a  total  loss  by  the  striking, 
although  the  sinking  took  place  three  or  four  hours  after  the  period 
of  the  risk  had  ended. 

1137.  If,  where  different  parlies,  u-hether  the  assured  and  the 
underwriter  or  diff^erent  undenvriters,  are  responsible  for  different 
causes  of  loss,  which  concur  in  the  loss,  and  the  damage  by  each  cause 
cannot  be  distiriguished,  the  party  responsible  for  the  predominating^ 
efficient  cause,  or  that  by  u-hich  the  operation  of  the  other  is  directly 
occasioned  as  being  merely  incidental  to  it,  is  liable  to  bear  the  loss. 

The  decision  of  the  question  thus  arising  seems  not  to  be  gov- 
erned by  any  general  presumption  or  rule  as  to  the  burden  of 
proof  between  the  assured  and  underwriters  in  the  same  policy, 
since  it  arises  also  between  several  underwriters  who  insure  against 
different  perils. 

The  above  proposition  is  not  happily  expressed  by  the  maxim, 
Causa  proxima  non  remota  spectatur,  yet  it  seems  to  be  the  only 
sense  in  which  that  maxim  is  true,  since  the  predominancy  and 
efficiency  of  one  of  divers  concurring  causes,  constitutes  the  mate- 
rial consideration. 

Thus,  in  the  case  before  referred  to,  of  insurance  being  against 
perils  of  the  seas,  American  condemnation  being  at  the  risk  of  the 

cajjturc  only,  the  vessel  being  blo^-n  able  from  Rice  v.  Homer.    In  the  Nisi 

to  the  coast  of  France  and  there  cap-  Piius  case  before  Lord  Kenyon,  the 

tured,  Lord  Kenyon  ruled  it  to  be  a  vessel  -was  merely  blown  out  of  its 

loss  by  capture,  precisely  in  accord-  course,  but  may  have  been  still  unin- 

ance  to  which  case  the  Supreme  Court  jured  by  the  perils  of  the  seas. 

of  Massachusetts  had  shortly  before  '  Howell  r.  Cincinnati  Ins.  Co.,  7 

decided,  Law  t-.  Goddard,  12  Mass.  R.  Ohio  R.  276. 
112,  and  both  are  plainly  distinguish- 


SECT.  XIV.]        REMOTE   AND    CONSEQUENTIAL   LOSSES.  695 

assured,  the  vessel  ran  aground  in  attempting  to  leave  the  harbor 
of  New  York  by  night,  and  evade  the  embargo,  and  was  there- 
upon next  day  seized  and  condemned  for  a  violation  of  the  em- 
bargo ;  Best,  C.  J.,  intimated  an  opinion  that  it  was  a  total  loss 
by  perils  of  the  seas.^ 

So,  in  case  of  insurance  on  goods  from  London  to  Maracaybo, 
"  free  from  capture  and  seizure,"  the  vessel  was  stranded  off  the 
latter  place,  and  a  part  of  the  cargo  thereby  damaged,  and  both 
vessel  and  cargo  were  seized  by  the  Royalists  then  in  j)ossession 
of  the  coast,  and  considered  to  be  good  prize  on  account  of  the 
voyage  having  been  intended  to  supply  the  insurgents,  who  had 
previously  been  in  possession  there.  Best,  C.  J.,  and  Park  and 
Burrough,  Justices,  of  the  English  Conmion  Pleas,  adjudged  it  to 
be  a  total  loss  of  both  the  damaged  and  undamaged  goods  by 
perils  of  the  seas.^ 

Where  the  policy  is  against  fire,  or  perils  of  the  seas,  and  not 
against  barratry,  the  policy  does  not  cover  a  loss  by  the  vessel 
being  barratrously  burnt  or  sunk.^ 

Under  an  exception  of  "  ordinary  "  perils  of  the  seas,  the  ship 
being  taken  out  of  its  course  and  while  in  possession  of  captors 
lost  by  perils  of  the  seas,  the  loss  was  held  in  Massachusetts,  by 
Parker,  C.  J.,  and  his  associates,  to  be  that  of  the  assured.'*  Kent, 
C.  J.,  states  a  different  doctrine.  He  says:  "  Suppose  the  policy 
against  capture  only,  and  the  vessel  was  captured  and  wrecked 
while  in  the  hands  of  the  captors,  I  should  think  the  assured  might 
recover  for  a  total  loss."  ^  But  this  surely  should  depend  upon 
the  fact  of  the  shipwreck  being  caused  directly  by  the  capture. 
In  all  other  respects,  each  party  runs  his  own  risk,  as  held  in  the 
Massachusetts  case  above  referred  to,  such  being  the  plain  import 
of  the  policy. 

A  ship  being  insured  in  the  port  of  Cadiz  against  "  no  risk  but 


1  In  Hahn  r.  Corbett,  2  Bing.  205,  Ins.    Co.,    11    Peters's    Sup.    Ct.   R. 
remarking  upon  Livie  v.  Janson,  12  213. 

East,  648.  4  Law  v.  Goddard,  12  Mass.  R.  112. 

2  Hahn  v.  Corbett,  2  Ring.  205.  5  Shieffelin  v.  New  York  Ins.  Co., 

3  Waters  v.  Merchants'  Louisville  9  Jobns.  21. 


696  RISKS    COVERED.  [cHAP.  XIII. 

sea-risk,"  was,  during  a  tide  higher  by  sixteen  feet  than  had  been 
known  before,  driven  upon  a  sand-bank,  and,  lying  much  buried 
in  mud  and  sand,  two  hundred  yards  from  high-water  mark,  da- 
maged and  not  worth  getting  off,  was  there  burnt  by  some  French 
soldiers  from  a  neighboring  battery.  The  jury  found  this  to  be  a 
total  loss  by  sea-risk,  and  the  verdict  was  acquiesced  in.^ 

But  under  another  policy  against  the  same  risk,  on  the  cargo  of 
the  vessel,  which  was  burnt  with  it,  not  having  been  materially 
damaged  by  the  stranding,  Kent,  C.  J.,  and  his  associates,  held  it 
not  to  be  a  total  loss  by  sea-risk.^ 

Where  the  vessel  having  sustained  damage  by  a  storm  would 
not  be  worth  the  expense  of  repairs  on  account  of  its  being  old 
and  partially  decayed,  though  sufficiently  strong  to  have  performed 
the  voyage  had  she  not  been  so  injured,  the  English  Court  of 
Common  Pleas  held  that  the  insurers  were  liable  for  a  total  loss.^ 
In  this  case  the  only  question  would  relate  to  the  seaworthiness 
of  the  vessel  at  the  commencement  of  the  risk. 

A  ship  and  freight  were  insured  "from  St.  Thomas  in  the  West 
Indies,  to  Rio  de  la  Hache,  and  at  and  from  thence  to  New  York," 
and  the  ship  was  seized  and  detained,  and  the  master  imprisoned, 
at  Rio  de  la  Hache,  on  the  charge  of  landing  some  twenty-five 
dollars'  worth  of  beans  without  permit,  and,  on  decree  which  was 
appealed  from  and  finally  confirmed,  was  released  on  payment  of 
the  value  of  the  beans.  The  vessel  had  been  detained  over  four 
months  by  these  proceedings,  and,  from  long  exposure  to  the 
weather  in  a  hot  climate  in  an  open  roadstead,  was  found,  when 
released,  to  have  been  so  much  injured  in  her  hull,  rigging,  and 
sails  that  she  could  not  proceed  on  the  voyage  without  great  re- 
pairs, which  could  not  be  made  at  that  place,  or  at  any  other  port 
to  which  she  could  proceed.  And  the  repairs,  if  practicable, 
would  have  cost  more  than  her  value.  Mr.  Justice  Story  held 
that  the  underwriters  were  liable  for  a  total  loss  by  arrest  and  de- 
tention.^ 


1  ratrick  v.  Commercial  Ins.  Co.,         ^  riiillips  v.  Nairnc,  IG  Eng.  Law 
11  Johns.  0.  Jurist,  Com.  PI.  194. 

2  Same  V.  Same,  11  id.  H.  4  Magoun  v.  New  England   Mar. 


SECT.  XIV.]         REMOTE   AND   CONSEQUENTIAL   LOSSES.  697 

1137  a.  The  underwriters  on  a  vessel  are  not  liable,  under  in- 
surance against  perils  of  the  seas,  to  indemnify  the  insured  owner 
for  the  amount  he  has  been  liable  to  pay  to  the  oivners  of  another 
vessel,  on  account  of  damage  to  the  latter  by  collision,  through  the 
fault  of  the  master  and  mariners  of  eitlier  or  both  of  the  vessels, 
or  without  fault  on  either  side. 

It  was  held  by  Mr.  Justice  Story ,^  and  his  decision  was  con- 
firmed by  the  Supreme  Court  of  the  United  States,-  that  a  loss  by 
paying  one  half  of  the  value  of  another  vessel  sunk  by  collision  of 
two  vessels  without  fault,  under  a  foreign  jurisdiction,  is  a  direct 
.loss  by  the  collision,  for  which  the  underwriters  on  the  vessel  are 
liable.  This  decision  is  at  variance  with  the  English  jurispru- 
dence.3 

The  question  has  since  been  thoroughly  discussed  in  the  Supreme 
Court  of  the  United  States,  and  the  judgment  of  that  court  learnedly 
and  elaborately  given  by  Mr.  Justice  Curtis,  that  the  underwriters 
on  a  vessel  are  not  liable  for  loss  to  which  the  assured  has  been 
subjected  by  payment  of  damage  done  to  another  by  collision 
through  the  negligence  of  the  master  and  mariners  of  the  insured 
vessel,  on  the  ground  that,  though  the  underwriters  are  liable  for 
loss  by  perils  insured  against  consequent  to  the  negligence  of  the 
master  and  mariners,  the  predominant  efficient  cause  of  the  loss  to 
the  assured  was  the  negligence,  which  was  not  a  risk  directly  in- 
sured against."* 

The  judgment  in  this  case  is  put  partly  upon  the  fact  that  the 
cause  of  the  loss  was  a  tort  committed  by  the  persons  in  charge  of 

Ins.  Co.,  1  Story's  R.  157.    The  policy  New  York,  oa  a  policy  against  "the 

excepted  arrest  for  prohibited  trade,  perils  of  the  lakes,  rivers,  and  canals, 

but  it  Appeared  from  the  proceedings  and  jettisons  and  damage  to  the  ves- 

that  there  had  been  no  trade  that  jus-  sel." 

tified  the  seizure  of  the  ship.  2  Peters  v.  Warren  Ins.  Co.,  14  Pe- 

1  Peters  v.  Warren  Ins.  Co.,  3  Sum-  ters's  Sup.  Ct.  R.  99. 

ner,  389 ;  and  see  Hale  v.  Washing-  3  Devaux  v.  Salvador,  4  Ad.  &  El. 

ton  Ins.  Co.,  2  Story's  R.  176;  and  420.     This  question  recurs  under  the 

Mathews  v.  Howard  Ins.  Co.,  13  Barb,  head  of  general  average. 

R.  234 ;  in  which  last  case  a  similar  4  General   Mut.  Ins.  Co.  v.  Sher- 

judgment  is  given  by  Strong,  J.,  and  wood,  14  Howard's  R.  352. 
Selden,  J.,  of  the  Supreme  Court  of 
VOL.  I.                           59 


698  RISKS   COVERED.  [CHAP.  XIII. 

the  insured  vessel,  which  is  certainly  a  sufficient  defence  against 
the  claim  for  a  loss  by  perils  of  the  sea,  since  an  insurance  of  a 
party  upon  a  subject  against  loss  by  the  elements  does  not  appa- 
rently import  a  promise  of  indemnity  to  the  assured  for  all  losses 
he  may  be  responsible  for  by  reason  of  the  torts  and  misdemeanors 
which  may  be  committed  in  the  management  and  use  of  the  insured 
subject,  whether  it  be  a  vessel  or  building  or  other  thing,  although 
the  elements  may  concur  in  promoting  the  loss.  The  judgment 
is,  however,  put  by  the  court  upon  two  other  grounds,  namely,  the 
want  of  any  precedent  prior  to  the  very  recent  cases  above  cited, 
for  fixing  any  such  liability  upon  underwriters,  though  similar  torts 
have  been  frequent  from  the  earliest  jurisprudence  in  matters  of 
insurance,  and  upon  the  ground  that  the  loss  to  the  assureds  is  not 
the  direct  or  necessary  result  of  physical  causes,  but  arises  from 
the  law  which  imposes  upon  the  assured  a  liability  in  respect  to 
third  parties.  These  two  grounds  are  as  applicable  to  cases  of 
mere  accident  without  fault,  as  to  those  of  tort,  and  there  does  not 
appear  to  be  any  better  reason  to  fix  upon  underwriters  a  liability 
for  accidental  damage  to  third  parties  than  for  torts.  Underwriters 
are  understood  to  insure  against  loss  on  the  insured  subject  itself, 
and  not  against  liability  for  damage  to  third  parties  in  respect  to 
which  it  may  be  one  of  the  instruments  or  means.  The  only  case 
in  which  underwriters  in  the  common  form  of  policies  have  been 
heretofore  held  liable  for  injury  to  or  sacrifice  of  the  property  of 
third  parties  or  that  of  the  assured  other  than  the  insured  subject, 
is  the  use  or  sacrifice  of  other  property,  for  the  purpose  of  saving 
the  insured  subject. 

It  cannot  make  any  difference  whether  the  liability  of  the  assured 
to  third  parlies  or  the  lien  on  the  insured  subject,  arises  under 
the  foreign  or  domestic  lawl  Damage  by  collision  through  the 
fault  of  the  two  vessels,  is  assessed  upon  them  in  admiralty 
equally,'  or  pro  rata  according  to  the  value  of  each.  But  what- 
ever loss  the  insured  vessel  is  liable  for  on  account  of  damage  to 
the  other,  is  upon  precisely  the  same  footing,  to  our  present  pur- 
pose, as  if  only  the  insured  vessel  had  been  in  fault.^ 

1  The  Clarence,  3  W.  Kob.  283 ;  2  See,  on  ibis  subject,  supra,  No- 
The  Scringapatam,  id.  38.  1099  ;  infra,  No.  14 IG,  et  scq. 


SECT.  XIV.]        REMOTE   AND    CONSEQUENTIAL   LOSSES.  699 

1138.  The  underwriter  on  the  cargo  is  liable  to  make  indem- 
nity for  the  excess  of  freight  over  that  originally  stipulated, 
which  the  insured  shipper  has  been  compelled  to  pay  on  a  trans- 
shipment of  the  cargo,  in  consequence  of  the  original  ship  having 
been  hindered  by  the  perils  insured  against  from  carrying  the 
cargo  to  the  port  of  destination.^ 

The  payment  of  such  excess  prevents  a  total  loss  of  cargo  by 
loss  of  the  voyage,  and  so  comes  under  the  general  rule  already 
stated,  that  insurance  against  a  peril  covers  the  expense  necessa- 
rily or  properly  incurred  to  avoid  or  diminish  it.^ 

Lord  Mansfield  ruled  against  such  a  claim,  without  stating  any 
ground,  but  merely  asserting  that  "the  underwriters  upon  cargo 
have  nothing  to  do  with  the  freight."  ^  And  Mr.  Justice  Story 
reasserts  the  same  doctrine."* 

In  a  New  York  case,  under  a  policy  upon  the  cargo,  a  ship 
having  been  captured  was  soon  released,  but  the  cargo  was  de- 
tained for  further  proof.  On  the  release  of  the  ship,  the  captain 
offered  to  carry  on  the  cargo  to  the  port  of  destination,  which  was 
impracticable  on  account  of  its  detention  ;  but  it  was  held  that  the 
offer  of  the  master  entitled  the  owners  to  entire  freight.  The  cargo 
was  afterwards  released,  and  the  owners  of  it  were  obliged  to  pay 
an  additional  freight  for  the  transportation  of  their  goods  to  the 
port  of  destination.  The  insurers  of  the  cargo  were  held  to  be 
liable  for  this  extra  freight.^  Mr.  Justice  Wilde,  speaking  of  this 
case,  says :  "  No  one,  I  think,  can  doubt  it  was  correctly  decided."  ^ 

A  ship  bound  on  a  voyage  from  Siam  to  Hamburg  was  wrecked 
at  the  Isle  of  France,  where  the  captain  procured  a  Dutch  vessel 
to  carry  forward  the  greater  part  of  the  cargo  to  Hamburg.  Under 
a  policy  upon  the  ship  and  cargo,  the  assured  claimed  of  the  insurers 

1  Per  Kent,  Chan.,  Searle  v.  Scovell,  ^  Baillie  v.  Moudigliani,  Park,  Ins. 
4  Johns.  Ch.  R.  218.  90  ;  Marshall  on  Insurance,  2d  ed.  728. 

2  Supra,  s.  10,  No.  1115;  and  see  4  Caze  v.  Baltimore  Ins.  Co.,  7 
Valin,  torn.  1,  p.  365,  tit.  du  Fret,  art.  Cranch,  358. 

11 ;  Emerigon,  torn.  1,  p.  428,  c.  12,  5  Mumford  v.  Commercial  Ins.  Co., 

s.  16  ;  Pothier,  des  Chart.  Part.,  n.  68 ;  5  Johns.  262. 

Code  de  Commerce,  liv.  2,  tit.  8,  No.  ^  17  Mass.  E.  476. 

107. 


7jOO  risks  covered.  [chap.  xiii. 

a  reimbursement  of  the  amount  of  freight  paid  to  the  Dutch  vessel. 
The  freight  paid  to  tliis  vessel  did  not  amount  to  so  much  as  would 
have  been  due  to  the  owners  of  the  original  ship,  according  to  the 
charter-party,  for  the  part  of  the  voyage  remaining  to  be  performed 
after  the  shipwreck.  Mr.  Justice  Wilde,  giving  the  opinion  of  the 
court,  said  :  "If,  however,  the  Dutch  ship  had  cost  more,  the  un- 
derwriters would  not  have  been  liable  ;  because  the  extra  expense 
would  have  fallen  upon  the  ship-owner,  and  not  upon  the  owner 
of  the  goods.  If  the  ship-owner  had  refused  to  provide  a  new 
ship,  he  could  have  claimed  no  freight.  We  must  consider  the 
master  as  acting  for  the  ship-owner  in  hiring  the  Dutch  ship,  and 
that  the  owner  of  the  goods  was  bound  to  pay  only  the  customary 
freight  from  Siam  to  Hamburg."  ^ 

1138  a.  Damage  to  goods  merely  in  consequence  of  other 
goods  being  wet,  is  damage  by  perils  of  the  seas,  as  held  by  Pol- 
lock, C.  B.,  Parke,  B.,  Piatt,  B.,  and  Martin,  B.,  of  the  English 
Court  of  Exchequer,  in  case  of  damage  to  tobacco  in  consequence 
of  hides  on  board  of  the  same  vessel  being  wetted  and  injured, 
though  the  tobacco  was  still  dry.^ 

1138  b.  The  underwriters  on  freight  may  be  liable  for  loss  of 
freight  of  a  memorandum  article,  though  they  may  be  exempted 
by  the  memorandum  from  the  loss  of  the  article  itself. 

1 139.  The  underwriters  on  the  cargo  are  not  directly  ansiver- 
able  for  loss  by  selling  goods  to  defray  the  expense  of  repairs  of 
the  ship  in  a  foreign  port. 

Where  the  repairs  are  a  subject  of  contribution  in  general  ave- 
rage, the  underwriters  on  cargo  must  contribute  their  proportion  of 
the  necessary  sacrifice  to  raise  the  funds  for  the  purpose  of  defray- 
ing the  expense  of  the  repairs,  but  they  are  not  directly  liable  to 
the  shipper  for  such  loss.^ 

1140.  Where  goods  are  deteriorated  in  value  by  sea-damage, 

1  Dodge  17.  United  Mar.  Ins.  Co.,  17  3  Sec  Dobson  r.  Wilson,  3  Camp. 
Mass.  R.  4  71.  480 ;  and  Powell  r.  Gudgeon,  5  M.  & 

2  Montoyar  r.  London  Ass.  Co.,  4  S.  431,  Bayley,  J.,  dissenting;  and 
Eng.  Law  &  Eq.  R.  (Press  of  Little,  Sarquy  v.  Ilobson,  2  B.  &  C.  7 ;  4 
Brown  &  Co.)  500  ;  S.  C,  20  Eng.  Bing.  131;  1  Y.  &  J.  437;  3  D.  &  R. 
Law  J.  E.xch.  R.  (n.  s.)  254.  192. 


SECT.  XIV.]        REMOTE   AND    CONSEQUENTIAL   LOSSES.  701 

hut  still  remain  in  hulk  and  specie,  and  are  delivered  at  the  port 
of  destination,  the  ivhole  freight  hcing  pay ahle,  the  loss  thus  sus- 
tained hy  the  shipper  on  account  of  payment  of  full  freight  is 
not  recoverable  against  his  underwriters.^ 

1141.  The  loss  of  the  cargo  hy  the  perils  against  which  the 
ship  is  insured,  wherehy  the  voyage  is  no  longer  worth  pursuing, 
is  not  a  constructive  total  loss  of  the  ship  hy  a  loss  of  the  voy- 
age? 

1142.  Insurance  affreight  covers  the  risk  of  loss  of  that  sub- 
ject hy  reason  of  a  loss  of  either  the  ship  hy  the  perils  insured 

against,  ivherchy  it  is  prevented  from  transporting  the  cargo^ 
or  a  loss  of  the  goods  hy  the  perils  insured  against,  wherehy  the 
earning  of  freight  hy  the  transportation  of  them  is  prevented^ 

Abbott,  C.  J.,  (afterwards  Lord  Tenterden,)  and  his  associates, 
held  a  different  doctrine  in  case  of  the  vessel's  putting  back  to 
Kingston,  the  port  of  departure  in  Jamaica,  on  account  of  sea- 
damage,  and  loss  of  freight  on  part  of  the  cargo  so  injured  by- 
being  wet  with  sea-water  that  it  was  prudently  and  justifiably  sold 
there,  on  account  of  danger  of  spontaneous  ignition  if  it  had  been 
carried  on,  and  because  the  expense  of  delay  to  wash  and  dry  it 
would  have  exceeded  the  amount  of  the  freight  of  it.  The  insur- 
ers were  held  not  to  be  liable  for  this  loss,  the  ground  stated  being, 
that,  "If  it  should  be  held  that  the  underwriter  would  be  liable,  it 
would  open  a  temptation  to  a  master  to  sail  away,  under  like  cir- 
cumstances, instead  of  stopping  until  the  cargo  could  be  reship- 
ped."^  That  is  to  say,  if  the  court  should  decide  for  the  assured 
in  this  case,  when  the  master's  proceeding  was  confessedly  justifi- 

1  See  Benecke  &  Stevens,  by  Phil.,  Alexander  v.  Baltimore  Ins.  Co.,  4 
Introduction;  Baillie  v.  Moudigliani,     Crancli,  370. 

Park,  8th  ed.,  117.     Emerigon  men-  3  This  is  the  more  ordinary  way  of 

tions  a  case  of  advice  to  pay,  in  cases  losing  freight. 

of  only  half  freight  under  the  French  4  Barclay  v.  Sterling,  5  M.  &  S.  6  ; 

law  (Ord.  1681,  tit.  Fret,  a.  15  ;  Code  Whitney  v.  N.  Y.  Firemens'  Ins.  Co., 

de  Commerce,  a.  299)  on  goods  re-  18  Johns.  208;  implied  9  id.  p.  19,  in 

fused  entry  at  the  port  of  destination  Bradhurst  v.  Columbian  Ins.  Co. 

(Insurance,  torn.  1,  p.  545,  c.  12,  s.  31);  5  Moody  v.  Jones,  4  B.  &  C.  394; 

but  does  not  give  his  own  opinion.  S.  C.  6  D.  &  R.  749. 

2  Kulenkemp  v.  Vigne,  1  T.  R.  304 ; 

59* 


702  RISKS    COVERED.  [CHAP.  XIII. 

able,  it  might  tempt  some  other  master  to  sell  or  leave  part  of  the 
cargo  when  it  was  not  justifiable.  The  decision,  supported  only 
by  such  a  reason,  certainly  weighs  very  little  against  what  seems 
to  be  a  plain,  and  is,  at  least  now,  a  well-established  doctrine. 
The  decisions  hereafter  to  be  stated  respecting  the  total  loss  of 
articles  insured  free  of  particular  average,  are  inconsistent  with  this 
case,  and  in  confirmation  of  the  doctrine  above  stated. 

In  case  of  delay  for  repairs  of  sea-damage,  if  the  same  can  be 
made  in  reasonable  time  to  carry  on  the  cargo,  the  master  is 
authorized  to  retain  it  unless  full  freight  is  paid,  and  if  he  delivers 
it  to  the  shipper  without  demanding  full  freight,  it  is  a  loss  of 
freight  by  his  mistake,  and  not  by  the  perils  of  the  sea.^ 

1 143.  Insurance  being  only  against  the  extraordinary  action  and 
effects  of  the  perils  insured  against,^  does  not  cover  the  mere  strain- 
ing and  indefinite  deterioration  of  the  ship,  but  only  such  damage 
as  may  be  estimated  and  repaired.^ 

1144.  The  underwriter  is  precluded  from  alleging,  in  defence 
against  a  claim  for  a  loss,  the  forfeiture  of  the  policy  hy  a  previ- 
ous act  against  ivhich  he  insured ;  as  in  case  of  insurance  against 
barratry  and  sea-damage,  where  the  master  barratrously  deviates, 
the  underwriter  is  not  exonerated  from  the  risk  by  such  deviation, 
and  though  no  loss  follows  directly  from  it,  he  is  still  liable  for 
loss  by  perils  of  the  seas.* 

1 145.  The  tivo  subsequent  sections  are  supplemental  to,  and 
illustrative  of,  the  inquiries  in  the  present  one. 

Thus  the  inquiry  in  the  next  section,  as  to  what  effects  of  perils 
come  within  the  period  of  the  policy,  closely  coincides  with  the 
subject  of  the  present  one,  and  divers  cases  in  the  section  subse- 
quent to  that  are  applicable  in  this  : 

As,  for  instance,  in  a  case  subsequently  stated,  of  the  exception 
of  loss  by  the  mortality  of  insured  horses  as  distinguished  from  loss 
by  the  effect  of  sea-risks.^ 

1  Clark  V.  Mass.  Fire  &  Mav.  Ins.        ^  Vallejo  v.  Wheeler,  Cowp.  143. 
Co.,  2  rick.  104.  5  Gabay  v.  Lloyd,  3  B.  &  C.  793 ; 

2  Sec  supra,  s.  4,  No.  108G,  1087.  5  I).  &  R.  G41.     Though  there  is  this 

3  See  supra,  s.  8,  and  Pcclc  v.  Suf-  coincidence  in  some  instances,  and  a 
folk  Ins.  Co.,  7  Pick.  254.  close  analogy  in  others,  still,  as  the 


SECT.  XV.]      LOSSES   WITHIN   THE   PERIOD    OF   THE   RISK.  703 


SECTION    XV.       WHAT    LOSSES    ARE    WITHIN    THE     PERIOD    OF    THE 

RISK. 

1146.  Whether  the  risk  in  certain  ports  or  localities  is  within 
the  period  of  the  risk,  as  described  in  the  policy. 

The  voyage  out  may  be  divided  into  successive  distinct  periods.^ 
Under  a  policy  on  goods  on  board  of  the  P.  "  from  New  Orleans 
to  Havana,  from  thence  to  Barita  and  back  to  New  Orleans,"  the 
question  arose  in  Louisiana  whether  the  risk  was  for  two  distinct 
periods,  one  from  New  Orleans  until  arrival  at  Havana,  the  other 
from  sailing  thence  until  arrival  at  New  Orleans,  or  for  one  entire 
period  from  New  Orleans  until  return  to  that  place.  The  under- 
writers contended  for  the  first  construction,  whereby  a  loss  which 
had  occurred  at  Havana  would  not  be  within  either  period  of  the 
risk  ;  the  assured  insisted  on  the  latter,  which  would  cover  that 
loss.  Eustis,  C.  J.,  giving  the  opinion  of  the  Supreme  Court  of 
that  State,  said  :  "  We  have  not  met  with  any  case  in  which, 
when  applied  to  an  intermediate  port,  the  words  '  thence '  and 
'  from'  have  the  same  exclusive  sense  as  when  used  in  regard  to 
the  commencement  of  the  voyage.  The  word  '  thence  '  is  not  a 
term  of  exclusion  or  of  limitation  of  risks,  but  descriptive  of  the 
course  of  the  voyage."  And  the  loss  was  adjudged  to  have  oc- 
curred within  the  local  termini  of  the  risk,  and  so  within  the  period 
specified  by  the  policy.^ 

A  similar  question  had  previously  arisen  in  Pennsylva-nia,  under 
insurance  upon  a  ship  originally  "  at  and  from  Philadelphia  to 
Cork  and  back  to  Philadelphia,"  and  a  subsequent  memorandum, 
that,  "  it  being  represesented  by  the  assured  that  the  A.  was 
ordered  from  Cork  to  Limerick,  and  had  arrived  there,  the  insurers 


questions  arising  in  each  of  those  sec-  seemed,  facilitate   the   labors  of  the 

tions  respectively  have  one  aspect  in  student,  and  be  more  convenient  for 

common,   whereby   they  are   distin-  reference  in  practice. 

guished  from  those  we  have  just  been  ^  Supra,  No.  976. 

considering,  and  others  of  them  are  ^  Bradley  v.  Nashville  Ins.  Co.,  3 

wholly  different,  the  grouping  of  them  La.  Annual  R.  708. 

in  the  manner  adopted  would,  as  it 


704  RISKS    COVERED.  [CHAP.  XIII. 

engaged  to  see  the  ship  from  thence,  instead  of  Cork,  back  to 
Philadelphia."  A  loss  occurred  while  the  vessel  lay  about  two 
miles  below  Limerick,  within  what  was  considered  to  be  a  part  of 
the  port  of  that  place.  Tilghman,  C.  J.,  and  his  associates  under- 
stood the  original  policy  to  have  covered  the  risk  at  Cork,  and 
this  appears  to  have  been  taken  for  granted  by  the  parties  ;  and 
the  court  considered  Limerick  to  be  substituted  for  Cork  by  the 
memorandum,  and  therefore  that  the  loss  took  place  within  the 
local  termini  of  the  risk.^ 

1147.  If  an  illegal  act  insured  against,  ivhereby  the  subject  is 
forfeited,  is  committed  during  the  period  of  the  policy,  and  the 
seizure  is  not  made  until  after  the  expiration  of  that  period,  the 
underwriters  are  not  liable.  If  the  seizure  is  made  during  that 
period,  they  are  liable,  in  case  of  condemnation,  though  subse- 
quent. 

The  forfeiture  of  a  ship  insured  was  incurred  during  the  con- 
tinuance of  the  risk,  by  the  barratrous  act  of  the  master  in  smug- 
gling goods,  but  the  ship  was  not  seized  for  the  forfeiture  until 
after  the  risk  had  ended.  The  insurers  were  held  not  to  be  liable, 
as  the  loss  had  not  in  fact  happened  during  the  risk.^ 

The  ground  stated  by  Mr.  Justice  Willes,  in  giving  the  opinion 
of  the  court,  was,  that  there  must  be  some  limitation  of  the  liability 
of  the  underwriter.  If  he  could  be  held  for  a  month  after  the  act 
of  smuggling,  and  before  the  seizure,  he  might  be  so  for  a  year, 
and  there  would  be  no  way  of  fixing  the  limit.^ 

Anothm*  reason  given  for  this  decision  distinguishes  this  case 
from  an  injury  by  the  action  of  the  elements,  namely,  that  in  this 
case  it  is  wholly  contingent  whether  the  vessel  will  ever  be  seized 
for  the  forfeiture,  and  it  more  resembles  the  case  of  an  approach- 
ino^  storm  at  sea,  than  that  of  damage  by  one  that  had  occurred 
during  the  period  of  the  risk. 

1  Bell  V.  Marine  Ins,  Co.,  8  Scrg.  the  question  should  be  decided,  than 
&  li.  98.  how  it  was  decided,  to  which  neither 

2  Lockyer  v.  Ofllcy,  1  T.  K.  252.  of  the  parties  to  the  policy  in  ques- 

3  In  the  same  case  Mr.  .Justice  tlon,  or  any  other  policy,  Avould  give 
Willes   made    the    ohjcctionable    re-  his  assent. 

mark,  that  it  was  more  important  that 


SECT.  XV.]     LOSSES    WITHIN   THE    PERIOD    OF   TEE   RISK.  705 

A  similar  decision  was  made  in  Louisiana,  in  case  of  seizure  in 
the  port  of  Havana  more  than  twenty-four  hours  after  the  arrival 
of  the  vessel,  when  the  period  of  the  policy  had  ended,  for  an  act 
of  smuggling  within  the  twenty-four  hours. ^ 

In  case  of  seizure  during  the  period  of  the  policy  for  an  act  in- 
sured against,  wherehy  the  vessel  is  subject  to  be  forfeited,  the 
underwriters  are  liable  ;  but  whether  for  a  partial  or  total  loss, 
will  depend  upon  the  assured's  availing  himself,  in  time,  of  his 
right  of  abandonment,  or  upon  the  fact  of  subsequent  condemna- 
tion .2 

1148.  Whether,  and  hoiv  far,  the  underwriters  are  liable  for 
the  effect sr  esuliing,  after  the  expiration  of  the  period  of  the 
policy,  from  the  operation  of  the  perils  insured,  against  during  the 
•policy  ? 

In  one  of  the  cases  just  above  referred  to,  Mr.  Justice  Willes 
stated  a  preceding  decision  by  the  English  King's  Bench,^  where 
a  ship  insured  for  a  certain  time  "  received  her  death-wound  " 
from  a  peril  insured  against,  three  days  before  the  end  of  the  time, 
but,  by  pumping,  was  kept  afloat  till  three  days  after  it  had  ended, 
in  which  the  verdict,  being  against  the  claim  for  the  loss,  was  con- 
firmed by  the  court. 

Mr.  J.  Willes  compares  such  a  case  to  one  of  a  policy  on  a  life, 
where  the  party  insured  for  a  year  receives  a  mortal  wound  during 
that  time,  of  which  he  dies  after  the  end  of  the  year.  But  the 
cases  are  not  parallel  ;  to  render  them  so,  the  insurance  on  the 
life  should  be,  not  against  death  merely,  as  a  life  policy  is,  but 
against  wounds,  as  a  ship  is  against  perils  of  the  seas.  The  com- 
parison is  accordingly  illusive. 

A  case  more  similar  came  before  Lewis,  C.  J.,  and  RadclifF 
and  Kent,  Justices,  in  New  Fork,  on  a  policy  upon  horses  from 
Liverpool  to  New  York,  "  against  all  risks,  including  the  risk  of 
death  from  any  cause  whatever,  until  safely  landed."  One  of  the 
horses  died  three  or  four  days  after  being  landed,  of  injuries  re- 
ceived in  a  gale   on    the  voyage.     Kent,  then  Justice,  states  the 

•  Mariatigui  v.  La.  State  Ins.  Co.,  8         2  Dorr  v.  New  England  Mar.  Ins. 
La.  R.  68,  decided  on  the  authority  of    Co.,  11  Mass.  R.  1. 
Lockyer  v.  Offley,  supra.  3  Meretony  v.  Dunlop,  1  T.  R.  260. 


706  RISKS    COVERED.  [CHAP.  XIIL 

question  in  such  case  to  be,  What  was  the  condition  of  the  article 
when  landed  ?  "  One  of  the  horses  received  a  death-wound  dur- 
ing the  voyage.  The  damages  so  received  are  a  proper  subject 
of  retribution.  How  much  damage  ought  to  have  been  assessed 
at  the  time  he  was  landed  ?  "  and  the  judgment  upon  this  ground, 
which  seems  plainly  to  be  the  true  one,  was  for  the  full  value  of 
the  animal.^ 

A  decision  of  Lord  Mansfield  and  his  associates  has  long  before 
applied  the  same  rule,  in  case  of  a  policy  upon  a  ship  for  six 
months,  which  was  injured  during  the  time  by  being  driven  from 
the  basin  at  Quebec  by  a  field  of  ice,  upon  the  rocks,  and  da- 
maged thereby.  In  the  spring,  about  three  months  after  the  period 
of  the  policy  had  expired,  she  was  found  to  have  been  injured, 
but  not  irreparably.  Difficulties  supervened  from  want  of  mate- 
rials, which  prevented  her  being  repaired,  and  she  was  sold.  It 
was  adjudged,  that 

The  claim  for  loss  must  be  determined  according  to  the  injury 
sustained  within  the  period  of  the  policy,  and  the  consequent  con- 
dition of  the  subject  at  the  conclusion  of  that  -period? 

If  certain  consequences  will  inevitably  result  after  the  expiration 
of  the  period  of  the  policy,  from  the  operation  of  the  perils  insured 
against  during  the  period,  they  are  surely  proper  subjects  of  indem- 
nity, according  to  the  rule  above  laid  down  by  Chancellor  Kent. 

A  case  has  arisen  in  the  Ohio  jurisprudence,  involving  this 
question.  A  Mississippi  steamboat  struck  upon  the  wreck  of 
another,  at  about  eleven  o'clock,  A.  M.,  and  in  consequence  was 
stranded,  and  afterwards  sunk  at  about  four  o'clock,  A.  M.  of  the 
next  day,  and  it  was  held  that  the  insurers  in  a  policy  which  ter- 
minated at  midnight  after  the  boat  struck,  were  liable  only  for  the 
damage  by  collision  with  the  wreck,  and  not  for  the  subsequent 
stranding  and  sinking,  and  accordingly,  as  the  damage,  in  case 
the  boat  had  not  subsequently  sunk,  was  less  than  fifty  per  cent., 
the  assured  had  no  right  to  abandon.'^ 

1  Colt  t'.  Smith,  3  Johns.  Cas.  16.  Ohio  R.  284.     Otherwise  on  a  policy 

2  Furncaux  v.  Bradley,  Marsh.  Ins.  that  subsisted  a  day  longer.  Same 
584.  riff.  V.  Cincinnati  Ins.  Co.,  7  Ohio  R. 

3  Howell  I'.  Protection  Ins.  Co.,  7  276. 


SECT.  XV.]     LOSSES   WITHIN   THE   PERIOD    OP   THE   RISK.  707 

The  proper  question  presented  by  this  case  seems  to  have  been 
one  of  fact,  namely,  what  was  the  value  of  the  vessel  in  the  situ- 
ation in  which  she  was  after  the  accident.  If  she  sunk  in  attempt- 
ing to  make  the  nearest  place  of  safety,  it  seems  to  have  been  a 
decided  total  loss  ;  but  if  in  attempting  to  pursue  the  voyage,  then 
the  question  should  seem  to  have  been  whether  a  place  of  reason- 
able safety  for  repairs  could  have  been  reached.* 

A  ship  was  delayed  to  repair  sea-damage  which  was  covered 
by  the  policy,  and  while  so  delayed  was  arrested  by  a  temporary 
embargo,  whereby  it  was  detained  until  after  the  risk  terminated  ; 
the  insurers  were  held  not  to  be  liable  for  the  loss  accruing  by 
this  detention  subsequently  to  the  termination  of  the  risk.^ 

A  British  vessel  insured  from  Bilboa  to  Rouen,  till  she  had  been 
there  moored  twenty-four  hours  in  safety,  arrived  at  Rouen,  where 
a  hostile  embargo  had  been  laid  upon  British  vessels.  She  was 
not  actually  taken  possession  of  under  the  embargo,  until  after  the 
twenty-four  hours,  but  had  been  in  the  power  of  the  officers  of 
government  from  the  time  of  her  arrival.  Lord  Kenyon  instructed 
the  jury,  that  the  loss  happened  immediately  on  the  vessel's  arriv- 
ing within  the  operation  of  the  embargo,  and  so  before  the  expi- 
ration of  the  risk.'^ 

1149.  Where  the  subject,  being  at  sea,  is  never  heard  of  as 
surviving  the  period  of  the  policy,  whether  on  a  life  or  other  sub- 
ject, it  is  a  question  for  the  jury  to  determine,  from  all  the  circum- 
stances, after  a  sufficient  time  has  passed  to  authorize  a  presump- 
tion of  a  loss,  whether  the  loss  tooTc  place  within  that  period.^ 

So  if  goods  insured  against  sea-perils  are  found,  some  time  after 
the  termination  of  the  risk  by  its  own  limitation,  or  by  deviation 
or  other  forfeiture,  to  have  been  injured  by  the  perils  of  the  seas, 
it  is  a  question  for  the  jury,  whether  from  all  the  circumstances, 
it  appears  that  the  damage  was  prior  to  the  forfeiture  or  other  ter- 
mination of  the  insurance.'^ 


1  Roclie  V.  Thompson,  Millar  on  3  Patterson  v.  Black,  Marsh.  Ins., 
Insurance,  20;  Weskett,  art.  End  of  2d  ed.  781 ;  Brown  u.Neilson,l  Caines, 
Voyage,  &c.,  n.  5.  525. 

2  Minett  v.  Anderson,  Park,   55  ;  4  Hare  v.  Travis,  7  B.  &  C.  14. 
Peake,  211. 


708  EISKS   COVERED.  [CHAP.  XIII. 


SECTION    XVI.       RISKS    EXCEPTED. 

1150.  It  has  already  appeared,^  that  certain  rislcs  are  impliedly 
excepted  in  all  policies  of  insurance. 

Besides  those,  the  contract  most  frequently  makes  express  excep- 
tions, by  stipulating  that  it  is  to  be  "  free  from,"  or  "  warranted 
against,"  certain  specified  perils. 

1151.  The  subject  of  a  marine  policy  may  he  exposed  to  all  the 
marine  risks  incident  to  the  specif  ed  voyage,  those  excepted  as  well 
as  those  covered,  during  the  whole  continuance  of  the  risk,  and 
two  or  more  perils  may  be  simultaneously  in  actual  operation  to 
the  damage  of  the  subject.  It  is  the  damage,  or  loss,  that  is  the 
material  object  of  both  the  stipulation  for  indemnity  and  the  ex- 
ceptions, whether  express  or  implied  ;  the  underwriter  being  liable 
for  the  direct  effects  of  the  perils  insured  against,  while  the  assured 
stipulates  to  bear  the  direct  effects  of  those  excepted.- 

1152.  Under  the  exception  of  dW  risks  on  account  of  "trade 
in  articles  contraband  of  war, ^'  if  the  whole  or  a  part  of  the  goods 
insured  are  articles  contraband  of  war,  and  a  loss  takes  place  in 
consequence,  the  insurers  are  not  liable  for  such  loss. 

1153.  The  exception  o/ trade  in  articles  contraband  of  war  re- 
lates to  the  goods  insured  in  the  policy,  and  Jiot  to  other  goods 
shipped  on  board  of  the  same  vessel. 

1 154.  The  common  form  of  American  policies  exempts  the 
underwriters  from  seizure  and  condemnation  for,  or  loss  in  conse- 
quence of,  illicit  or  prohibited  trade  and  trade  in  articles  contra- 
band of  war.  The  exception  of  such  perils  is  to  some  purposes 
the  converse  of  the  insurance  against  the  same  perils,  which  has 
been  before  considered. ^ 

"Illicit"  trade  is  not,  as  we  have  seen,  synonymous  with  "con- 
traband," and  this  latter  covers  different  species  of  trade,  and  the 
exception  is  made  also  in  divers  forms,  but  the  construction  of  the 

'  Supra,  c.  8  and  10.  said  to  have  been  introduced  in  Phila- 

2  Sec  supra,  1129.  ladelphia  as  early  as  1778.     Smith  v. 

3  Supra,  s.  II.     This  e.xccption  is     Delaware  Ins.  Co.,  3  Serg.  &  R.  82. 


SECT.  XVI.]  RISKS   EXCEPTED.  709 

divers  parts  and  forms  of  the  exception  is  so  similar,  that  they  may 
be  classed  together. 

The  principal  question  here  is,  whether  the  exception  extends 
to  seizure  and  detention  under  a  mere  pretence,  or  a  groundless 
charge  of  such  trade,  where  the  insured  subject  is  within  a  foreign 
jurisdiction  ;  upon  which  question  the  better  doctrine  seems  to  be 
that  adopted  by  the  Supreme  Court  of  the  United  States,  namely, 

The  exception  of  the  risk  of  illicit,  prohibited,  and  contraband 
trade,  exonerates  the  underwriter  from  liability,  not  only  ivhere 
there  has  actually  been  such,  but  also  where  there  is  reasonable, 
legal,  and  justifiable  ground  for  seizure  and  detention  on  account 
ofit.^ 

The  insurers  are  not  liable  for  loss  under  this  exception, 

Where  there  is  an  attempt  to  trade,  though  there  is  no  actual 
trading,  as  held  by  the  Supreme  Court  of  the  United  States :  ^ 

Or  a  mere  sailing  on  the  voyage,  as  held  in  Massachusetts  :  ^ 

Or  when  the  vessel  arrives  at  the  port  of  destination,  and  is 
there  denied  entry,  as  held  in  New  York :  ^ 

Or  where  the  goods,  described  as  Spanish,  are  condemned  under 
the  charge  of  their  being  Spanish,  as  held  by  the  Supreme  Court 
of  Louisiana :  ^ 

Or  where  the  goods  are  seized  and  'condemned  for  trade  in  fact 
illicit,  though  the  master  or  other  representative  of  the  assured  has 
no  intention  to  trade  illicitly,  or  knowledge  of  the  law  under  which 
the  property  is  condemned,  as  ruled  by  Mr.  Justice  Washington  :  ^ 

1  Carrington  v.  Merchants'  Ins.  Co.,  2  Church   v.   Hubbard,   2  Cranch, 

8  Peters's  Sup.  Ct.  R.  495.     And  see  187 ;  Andrews  v.  Essex  Mar.  Ins.  Co., 

Bradstreet   v.   Neptune    Ins.    Co.,   3  3  Mason's  E.  6. 

Sumner,   II.    601;  Magoun   v.   New  *  jjigginson  v.  Pomeroy,  11  Mass. 

England  Mar.  Ins.  Co.,  1  Story's  R.  R.  104.     See  also  Smith  v.  Delaware 

157.     And  sec  relative  to  this  excep-  Ins.  Co.,  3  Wash.  C.  C.  R.  127. 

tion,  Laing  v.  United  Ins.  Co.,  2  Johns.  4  Suydam    v.   Marine   Ins.   Co.,  1 

Cas.  174,  in  the  Supreme  Court  of  Johns.  181. 

New  York ;  and  on  the  same  voyage,  5  Goicoechea  v.  La.  State  Ins.  Co., 

Johnston  v.  Ludlow,  id.  481,  in  the  6  Martin,  N.  S.  51. 

Court  of  Errors  of  that  State ;  Smith  6  Smith   v.    Delaware   Ins.  Co.,  2 

V.  Delaware  Ins.  Co.,  3  Serg.  &  R.  82  ;  Wash.  C.  C.  R.  127. 
Faudel  v.  Phoenix  Ins.  Co.,  4  id.  29. 
VOL.  I.                          60 


710 


RISKS   COVERED. 


[chap.  XIII. 


Or  where  the  trade  is  in  fact  illicit  under  a  foreign  law,  though 
the  officers  of  the  foreign  government  to  which  the  place  is  sub- 
ject give  permission  for  the  trade  without  authority  so  to  do,  as 
held  in  New  York.^ 

The  insurers  are  liable  for  loss,  notwithstanding  the  excep- 
tion, 

Where  the  seizure  of  the  cargo  in  the  port  of  destination  was 
apparently  by  arbitrary  violence,  there  being  no  evidence  of  con- 
demnation for  such  trade,  as  held  in  New  York :  ^ 

And  where  there  is  in  fact  no  illicit  trade  or  reasonable  ground 
of  seizure,  although  seizure  is  unlawfully  made  under  a  pretence 
thereof,  as  ruled  by  Mr.  Justice  Washington  ;  ^  and  by  Mr.  Jus- 
tice Story  ;  ^  and  by  the  Supreme  Court  of  Pennsylvania ;  ^  and 
by  the  Supreme   Court  of  New  York:  ^ 

And  where  the  illicit  trade  comes  within  a  peril  insured  against, 
as  by  barratry,  as  held  in  New  York:  "^ 

And  where  the  trade  at  the  port  of  destination  is  rendered  illicit 
by  a  peril  insured  against,  as  by  detention  of  the  vessel  by  a  belli- 
gerent, as  held  in  Pennsylvania :  ^ 

And  where  the  policy  is  on  goods  or  specie,  and  the  export  of 
specie  from  the  port  named  is  known  to  the  underwriters  to  be 
prohibited,  as  held  in  New  York  :  ^ 

And  where  the  exception  is  of  liability  for  loss  by  "  existing 
regulations,"  and  the  loss  is  by  one  made  subsequently,  as  held  in 
Massachusetts-^*^ 

1155.-  Whether  the  decree  of  a  foreign  tribunal  is  conclusive 


1  Tucker  v.  Juhcl,  1  Johns.  20. 

2  Gracie  v.  New  York  Ins.  Co.,  13 
Johns.  101. 

3  Graliam  v.  Penn.  Ins.  Co.,  2  Wash. 
ecu.  113. 

^  MajToun  v.  New  England  ]\Iar.  Ins. 
Co.,  1  Story's  11.  157. 

^  Sniitli  V.  Delaware  Ins.  Co.,  3 
Serg.  &  11.  82. 

c  Francis  v.  Ocean  Ins.  Co.,  C  Co- 
■wcn,  404. 


7  American  Ins.  Co.  v.  Dunham,  12 
Wend.  463;  and  S.  C,  on  error,  15 
id.  9. 

8  Savage  v.  Pleasants,  5  Binney, 
403. 

y  Seton  V.  Delaware  Ins.  Co.,  2 
Wash.  C.  C.  R.  175. 

1"  Wood  V.  New  England  Mar.  Ins. 
Co.,  14  Mass.  R.  31. 


SECT.  XVI.]  RISKS   EXCEPTED.  711 

of  the  fact  of  illicit  trading  in   reference  to  the  exception  of  such 
trade,  comes  under  consideration  subsequently.^ 

1156.  The  insurers  are  exonerated  under  the  exception  of  pro- 
hibited trade,  though  the  prohibition  is  subsequent  to  the  date  of 
the  insurance.^ 

1157.  The  exception  of  illicit  trade  has  reference  only  to  the 
goods  of  the  assured,  not  to  those  of  other  shippers  ;  ^  whether  a 
shipment  of  other  goods  that  are  illicit  is  known  to  both  parties  to 
the  policy  :  "^  or  to  the  assured,  and  not  to  the  insurers.^ 

1158.  Incase  of  an  exception  of  seizure  for  illicit  trade,  it  is 
requisite,  in  order  to  bring  a  case  within  it,  that  there  shoiild 
be  a  "  seizure ;  "  the  mere  fact  of  illicit  trade  without  a  seizure  is 
not  sufficient.^ 

Goods  were  insured  from  New  York  to  Cherbourg,  "  free  from 
seizure  for  illicit  or  prohibited  trade."  The  ship  and  cargo  were 
seized  at  Cherbourg  under  the  Berlin  Decree,  and  condemned  "on 
the  ground  of  a  false  declaration  by  the  captain,"  that  he  had  not 
gone  to  England  on  the  voyage.  This  was  held  in  New  York 
not  to  be  a  "  seizure  for  illicit  trade,"  and  the  underwriters  were 
adjudged  to  be  liable  for  the  loss.^ 

1159.  Whether  under  the  exception  of  the  risJc  of  blockade 
the  underwriters  are  liable  for  an  illegal  capture  on  account  of 
an  actually  existing  blockade,  ivhere  there  has  been  no  violation 
of  ill  ♦ 

Under  insurance  on  a  vessel  and  cargo  against  "all  risks,  His- 
paniola  and  blockaded  ports  excepted,"  Marshall,  C.  J.,  and  his 
associates,  held  the  underwriters  to  be  liable  for  loss  by  capture, 
after  the  master,  having  been  sailing  for  Cura^oa,  had  changed 


1  See  infra,  No.  2104,  et  seq.  5  De  Peyster  v.  Gardner,  1  Gaines's 

2  Smith   V.   Delaware  Ins.    Go.,   3     R.  492. 

Wash.  C.  G.  R.  127.  6  Graham  v.  Penn.  Ins.  Co.,  2  Wash. 

3  Gucullu   I'.   Orleans  Ins.    Go.,  6     G.  G.  R.  113;  Kohn  v.  New  Orleans 
Martin,  N.  S.  13.  Ins.  Go.,  12  La.  R.  349. 

'^  Bowne   v.    Shaw,  1  Gaines's  R.        '''  Mumford  v.  Phoenix  Ins.  Go.,  7 

489.  Johns.  449. 


712  RISKS    CO\"ERED.  [CHAP.  XIII. 

his  course  to  return  to  Norfolk  on  notice  that  Curacoa  was  block- 
aded.^ 

The  exception  of  '''risk  of  blockaded  port"  has  been  held  in 
New  York,  by  Kent,  C.  J.,  and  his  associates,  to  exonerate  the 
insurers  from  loss  "that  arises  by  reason  of  the  blockade,"  though 
there  is  no  violation  of  it,  and  though  the  capture  for  a  violation  is 
illegal." 

From  analogy  to  the  well-established  rule  in  reference  to  the 
exception  of  illicit  trade,^  I  infer  the  better  doctrine  to  be,  that. 

Under  the  exception  of  the  risk  of  blockade,  the  insurers  are 
liable  in  case  of  there  being  no  violation  of  a  blockade  or  inten- 
tion to  violate  one  and  proceeding  icith  such  intention,  iiiiless  the 
phraseology  of  the  exception  in  the  particular  case  imports  a 
larger  exemption. 

This  is  adopting  the  presumption,  that  the  parties  have  refer- 
ence to  an  actual  blockade  and  a  violation  of  it,  or  intent  to  violate 
it,  such  presumption  being  subject  to  be  rebutted. 

1160.  Whether  the  exception  of  risks  in  a  port  is  applicable 
to  its  ouiports  and  stations  1 

Under  this  exception,  the  port  of  Varel  is  held  by  Lord  Ellen- 
borough  and  his  associates  to  extend  fifteen  miles  below  that  place 
on  the  river  Jahde."^ 

And  the  port  of  Pillau  was  held  by  the  same  court  to  extend  to 
the  outer  harbopbf  that  place,  two  miles  from  the  inner  harbor.-^ 

Sir  James  ^lansfield  and  his  associates  held,  on  the  contrary, 
that  a  seizure  in  Pillau  Roads,  outside  of  the  harbor,  where  ves- 
sels of  the  size  of  the  one  in  question  usually  discharge  a  part  of 
their  cargoes,  was  not  a  seizure  in  port :  ^ 

And  the  same  judges  hdd  a  seizure  by  French  officers  then  in 
possession  of  Wilmar,  about  four  miles  further  out  than  where  ves- 


>  Yeaton  f.  Fr>-,  5  Cranch,  335.  5  Dalgleish  v.  Brooke,  15  East,  295. 

2  Radcliff  V.  United  Ins.  Co.,  7  Johns.  Sec  also  Oom  v.  Taylor,  3  Camp.  205  ; 
38 ;  S.  C,  9  id.  277.  also  Maydhew  r.  Scott,  id.  205. 

3  Supra,  1154.  c  Brown  r.  Tierncy,  1  Taunt.  517. 
^  Jarman  r.  Coape,  13  East,  394 ; 

S.  C,  2  Camp.  615. 


SECT.  XVI.]  RISKS  EXCEPTED.  713 

sels  of  similar  size  to  the  one  in  question  usually  began  to  unload, 
was  not  a  seizure  in  that  port.^ 

A  similar  decision  was  subsequently  made  by  the  same  court  in 
respect  of  an  exception  of  confiscation  at  the  same  place  j^  and 
also  in  respect  of  an  exception  of  capture  at  that  port.^ 

In  these  decisions  the  two  courts  are  plainly  at  variance.  Sir 
J.  Mansfield  said,  in  the  last  case  referred  to,  that  "no  doubt  the 
underwriters  intended  to  protect  themselves  against  the  risk  of  that 
loss  which  had  occurred,"  but  that  he  could  not  get  over  the  words 
of  the  policy,  which  did  not  distinctly  include  the  case  within  the 
exception.  This  is  in  conformity  to  the  rule,  that  a  doubt  on  this 
exception  must  operate  against  the  underwriters. 

In  another  case  Lord  Ellenborough  himself  instructed  the  jury 
less  favorably  to  the  underwriters.  A  vessel  was  insured  at  and 
from  Rotterdam  to  London,  with  liberty  to  touch  at  all  ports, 
"free  from  capture  in  port."  The  ship  was  captured  while  at 
anchor  at  Ghoree  Ghat,  about  half  a  mile  from  Ghoree,  in  an 
open  roadstead,  within  the  headlands  which  form  the  mouth  of  the 
river  Maese.  Lord  Ellenborough  said,  if  you  would  protect  your- 
self by  the  exception,  "you  must  show  that  the  ship  was  within 
some  port  at  the  time  of  the  capture.  No  witness  has  stated  that 
the  place  where  she  lay  was  within  the  port  of  Rotterdam  or  of 
Ghoree,  or  within  any  other  port."  ^ 

I  accordingly  conclude,  as  the  better  and  only  general  doctrine, 
that. 

In  case  of  reasonable  doubt,  under  the  exception  of  seizure  in 
port,  whether  the  place  of  the  seizure  is  in  port,  the  underwriters 
are  liable  for  the  lossJ' 


1  Mellish   V.   Staniforth,  3   Taunt.  2  Levy  v.  Vaughan,  4  Taunt.  387. 
499.    The  court  hesitated  in  this  case,  3  Keyser  v.  Scott,  4  Taunt.  660. 
because   the   captain  lay  about  five  *  Baring  v.  Veaux,  2  Camp.  541. 
hours  in  a  situation  as  much  exposed  ^  See  Levi  v.  AUnutt,  15  East,  267. 
to  seizure  as  if  he  had  been  in  the  In  order  to  arrive  at  a  practical  gene- 
port,  after  he  had  learned  that  the  ral  rule  in  respect  of  what  outports 
place  was  in  possession  of  the  French ;  and  distances,  stations,  channels,  and 
but  they  felt  bound  to  consider  the  anchoring-grounds,  are  to  be  consi- 
place  as  not  being  in  the  port.  dered  to  be  within  a  port,  and  whether 
60* 


714  EISKS    COVEKED.  [CHAP.  XIII. 

1161.  In  case  of  any  loss  technically  total  in  its  character,  by 
a  peril  insured  against,  the  insurers  are  liable  though  the  loss  is 
folloived  by  the  operation  of  an  excepted  peril,  upon  the  subject. 

Goods  being  insured  with  the  exception  of  seizure  in  port,  the 
vessel  was  seized  in  Pillau  Roads  by  Prussian  soldiers  from  Pillau, 
and  Frenchmen  from  a  French  privateer.  The  dispute  between 
the  two  sets  of  captors  was  referred  by  the  Prussian  government 
to  that  of  France,  and  the  French  court  of  prizes  gave  the  prize 
to  the  privateer's  men.  Lord  Ellenborough  said,  "There  was  no 
confiscation  ;"  and  Mr.  Justice  Grose,  "The  Prussian  government 
did  not  confiscate,  but  abjured  and  renounced  the  property  ;"  and 
the  case  was  decided  not  to  come  within  the  exception.^ 

This  seems  to  have  been  deciding  the  loss  to  be  by  the  first  act 
of  force,  rather  than  by  the  subsequent  acts  and  proceedings,  con- 
trary to  a  prior  judgment  by  the  same  court.^ 

In  a  New  York  case,  under  a  policy  on  cargo  from  Philadelphia 
to  St.  Sebastian's,  with  the  exception  of  all  risks  in  port  but  sea- 
risk,  the  vessel  was  captured  about  four  leagues  from  St.  Sebas- 
tian's, and  taken  into  Passage,  and  taken  thence  by  a  French  crew 
to  Bayonne,  where  the  cargo  was  sequestered.  This  was  held  to 
be  a  loss  by  capture  for  which  the  insurers  were  liable.^ 

So  under  a  policy  on  goods  "  free  from  capture  and  seizure," 
the  ship  having  been  stranded  on  the  Spanish  coast,  and  the  cargo 
seized  by  the  officers  of  the  government  as  prize,  it  was  held  by 
the  English  Court  of  Common  Pleas,  that  the  underwriters  were 
liable  for  a  loss  by  perils  of  the  seas."* 

A  decision  contrary  to  the  preceding  has  been  made  in  Mary- 


a  port  is  to  be  understood  as  having  and  in  other  places  where  it  occurs, 

the  same  limits  in  respect  of  insurance  dismissed    quite    short  of  any  such 

and  all  other  contracts,  and  also  in  thorough  discussion. 

respect  of  jurisdiction  and  of  crimes,  ^  Levi  v.  Allnutt,  15  East,  267, 

it  -would  be  necessary  to  go  into  a  2  Ljvie  v.  Janson,  12   East,  648; 

protracted  digression  on  the  subject,  supra,  No.  1136. 

somewhat  in  the  character  of  a  dis-  3  Duval  v.  Commercial  Ins.  Co.,  10 

tinct  treatise,  which  would  be  over-  Johns.  278. 

stepping  the  proposed  limits  of  this  ^  Hahn  v.  Corbett,  2  Bing.  205 ; 

work.    The  inquiry  is,  therefore,  here  S.  C,  9  B.  Moore,  390. 


SECT.  XVI.]  RISKS   EXCEPTED.  715 

land,  under  an  exception  of  "seizure  in  port"  in  a  policy  on  a 
vessel,  which,  being  captured  in  1810  and  carried  into  the  Spanish 
port  of  Bermia,  and  thence  to  Bayonne,  was,  without  any  legal 
proceedings  being  had,  taken  in  the  latter  place  for  the  public  ser- 
vice. This  was  held,  in  Maryland,  to  be  a  loss  by  seizure  in  port 
for  which  the  insurers  were  not  liable.^ 

So  under  a  policy  on  goods  against  fire  and  an  exception  of  loss 
by  theft,  the  loss  by  plunder  of  the  goods  after  they  had  been  re- 
moved to  save  them  from  fire,  was  held  in  Missouri  to  come  within 
the  exception  .2 

In  the  cases  last  stated,  the  subject  was  considered  at  the  time 
not  to  have  been  totally  lost  until  the  excepted  risk  intervened, 
and  the  underwriters  ought,  therefore,  to  have  been  held  liable,  at 
least,  for  the  prior  damage  and  expense  by  reason  of  a  peril  in- 
sured against. 

1162.  The  cases  afford  a  great  variety  of  particular  exceptions 
of  risks. 

A  cargo  being  insured  to  Havana,  "/ree  from  loss  if  not  per- 
mitted to  entry  in  consequence  of  having  negroes  on  hoard,^^  the 
vessel,  according  to  a  standing  regulation,  was  required  to  come  to 
anchor  near  the  Moro  Castle,  until  it  was  visited,  and  was  not 
permitted  to  go  into  the  inner  harbor  and  be  moored  at  the  docks 
until  the  negroes  had  been  landed,  and  was  wrecked  before  land- 
ing them  or  being  visited.  It  was  held  by  the  Supreme  Court  of 
New  York,  that  the  entry  intended  by  the  exception  is  that  at  the 
custom-house,  and  that  the  insurers  were  liable.^ 

The  exception  of  loss  hy  the  "  ordinary  perils  of  the  seas" 
means  perils  of  the  seas  as  distinguished  from  arrest,  capture, 
&;c.,  and  not  as  distinguished  from  extraordinary  perils,  and  the 
insurers  are  liable  under  such  exception  for  loss  by  shipwreck.'* 

A  warranty  "  against  loss  to  or  from  the  sheathing,^'  is  merely 
an  exception  of  the  risk  of  damage  to  the  sheathing,  not  a  condi- 


1  Barney  v.  Maryland  Ins.  Co.,  5  3  Dickey  v.   United  Ins.   Co.,   1 1 
Har.  &  Johns.  139.  Johns.  358. 

2  Webb  V.  Protection  Ins.  Co.,  14  4  Law   v.    Goddard,  12  Mass.  K. 
Missouri  R.  3.  112. 


716 


RISKS    COVERED. 


[chap.  XIII. 


tion  that  the  sheathing  shall  be  maintained  entire  during  the  risk  ; 
and  the  insurers  continue  to  be  liable  for  loss  notwithstanding  that 
the  sheathing  may  have  been  injured  by  perils  of  the  seas.^ 

The  exception  of  loss  on  a  ship  "iy  the  British,  in  case  of 
capture,  the  sea-risks  to  continue,"  was  held  by  the  Supreme 
Court  of  New  York  to  exonerate  the  insurers  from  "  loss  attribu- 
table to  an  act  of  the  captors,  which,  if  done  by  the  assured, 
would  absolve  the  insurersj'^  and  they  were  held  not  to  be  liable 
for  damage  by  collision  in  consequence  of  her  being  moored  in  a 
position  exposing  her  to  collision  with  other  vessels,  so  that  when 
the  captain  regained  possession  she  was  a  mere  wreck.^ 

The  exception  of  "  detention  "  exonerates  the  insurers  in  case 
of  hindrance  by  a  blockade  from  leaving  a  port. ^ 

The  exception  of  "  mortality  "  of  insured  animals  was  held  by 
Lord  Tenterden  and  his  associates  7iot  to  apply  to  ^'violent  death," 
and  the  insurers  were  held  liable  for  loss  of  mules  and  other  ani- 
mals from  injuries  occasioned  by  the  rolling  of  the  ship.'*  So  also 
for  the  death  of  horses,  which  in  tempestuous  weather  broke  their 
slings  and  the  partitions  between  them,  and  died  of  bruises  occa- 
sioned by  the  rolling  of  the  vessel  and  by  kicking  each  other.^ 

Exception  is  sometimes  made  of  all  risks  within  a  certain  region 
for  a  time ;  as  in  the  West  Indies,  from  July  11th  to  October 
ISth.*^ 

A  provision  that  the  insurers  "  take  no  risk  in  port,"  extends 


1  Martin  v.  Fishing  Ins.  Co.,  20 
Pick.  389. 

2  Coolidge  V.  N.  Y.  Firemens'  Ins. 
Co.,  1 4  Johns.  308.  According  to  the 
doctrine  that  loss  by  sea-perils  in  con- 
sequence of  the  mistakes  or  negli- 
gence of  the  master  and  mariners  is 
at  the  risk  of  the  insurers,  (see  supra, 
No.  1049,)  and  to  the  test  applied  by- 
Mr.  Justice  Spencer  in  the  passage 
above  rjuoted,  in  which  he  refers,  no 
doubt,  to  the  acts  of  the  master,  the 
insurers  would  have  been  held  liable 
in  this  case.     At  the  date  of  this  case, 


however,  the  assured  was  understood 
to  be  answerable  for  the  mistakes  and 
negligences  of  the  master  and  mari- 
ners, to  a  much  greater  degree  than 
at  present. 

3  Wilson    V.   United  Ins.    Co.,  14 
Johns.  227. 

4  Lawrence  v.  Aberdeen,  5  B.  &  A. 
107. 

5  Gabay  v.  Lloyd,  3  B.  &  C.  793 ; 
S.  C,  5  D.  &  R.  G41. 

6  Palmer   v.   AVarren    Ins.    Co.,  1 
Story's  11.  3 GO. 


SECT.  XVI.]  RISKS   EXCEPTED.  717 

to  all  ports  at  which  the  vessel  touches  of  necessity,  as  well  as 
those  in  the  regular  course  of  the  voyage.^ 

The  exception  of  "  French  risks  "  exempts  the  insurers  from 
"  loss  by  the  acts  of  Frenchmen.''^  2 

A  provision  by  law,  that  the  assured  on  a  steamboat  shall  not 
recover  for  a  loss  by  accidents  in  racing,  running  into  another 
boat,  &;c.,  "except  such  as  is  impossible  to  be  foreseen,  and 
avoided,"  is  held  in  Louisiana  to  have  reference  to  an  impossibility 
by  reasonable  intendment.^ 

The  exception  of  loss  on  a  steamer  from  the  bursting  of  boilers, 
and  breaking  of  engines,  unless  it  is  caused  by  external  violence, 
is  held  in  Missouri  to  have  reference  to  violence  external,  not  to 
the  boiler  or  engine  merely,  but  to  the  steamer.^ 

The  exception  of  death  by  suicide  in  life  policies  is  construed  to 
extend  only  to  an  act  of  self-destruction  by  a  person  having  men- 
tal capacity  sufficient  to  render  himself  responsible  for  his  acts.^ 

An  exception  of  "  seizure  "  is  not  limited  to  an  arrest  on  ac- 
count of  a  municipal  regulation. 

It  was  so  held  in  New  York,  in  case  of  a  ship  insured  with  the 
exception  of  seizure  and  taken  by  French  privateers  as  prize,  and 
not  on  account  of  any  municipal  regulation.^ 

1162a.  The  exception  of  loss  "by  a  usurped  power"  in  a 
fire  policy,  does  not  exonerate  the  insurers  from  loss  occasioned 
by  a  mob."^ 

The  exception  of  loss  by  "  civil  commotion  "  V!as  ruled  by  Lord 
Mansfield  to  exempt  underwriters  from  a  loss  by  a  building  being 
destroyed  by  a  mob  in  a  riot  against  Catholics.^  But  a  doubt  of 
this  construction  is  certainly  excusable,  and  the  more  so,  as  it  was 


1  Patrick   v.  Commercial  Ins.  Co.,  ^  Supra,  No.  895,  and  cases  cited. 

1 1  Johns.  9.  See  also  Baring  v.  Veaux,  6  Black  v.  Marine  Ins.  Co.,  1 1  Johns. 

2  Camp.  541,  287. 

2  Roget  V.  Thurston,  2  Johns.  Cas.  7  Drinkwater  v.  London  Ass.  Co., 
248.  2  Wils.  363.    See  as  to  the  exceptions 

3  Caldwell  v.  St.  Louis  Perpetual  in  fire  policies  generally,  supra.  No. 
Ins.  Co.,  1  La.  Annual  R.  85.  63. 

4  Citizens'  Ins.  Co.  of  Missouri  v.  ^  Langdale  v.  Mason,  2  Marsh.  Ins., 
Glasgow,  9  Mo.  R.  406.  2d  ed.  791. 


718  RISKS    COVERED.  [CHAP.  XIII. 

adopted  by  Lord  Mansfield  partly  on  the  ground  of  the  successive 
alterations  of  the  common  form  of  policy  used  by  the  London 
Assurance  Company,  which  in  the  particular  case  could  only  go 
to  show  the  construction  intended  by  the  underwriters,  without 
showing  what  construction  assureds  would  be  authorized  to  put. 
And  again,  if  the  history  of  the  modifications  of  the  form  of  the 
policy  of  that  company  should  be  of  weight  in  determining  its 
construction,  it  would  not  be  in  reference  to  those  of  others.  The 
phrase  "  civil  commotion "  seems  plainly  to  mean,  ordinarily, 
something  more  than  the  mere  riotous  outbreaks  of  fanaticism. 

An  exception  is  sometimes  made  o/*all  risks  for  a  time,  as,  in  a 
fire  policy,  while  a  hazardous  trade  is  carried  on  in  the  insured 
premises  :  ^ 

1163.  Whether,  in  case  of  doubt  and  no  preponderance  of  evi- 
dence, the  presumption  is  that  the  loss  was  by  a  peril  insured 
against,  or  one  excepted  1 

This  is  a  question  not  free  of  difficulty.  Mr.  Justice  Story 
thinks  the  presumption  is  that  the  loss  was  by  the  perils  insured 
against.^  The  phraseology  of  Mr.  Justice  RadclifF  of  New  York 
seems  to  have  a  different  aspect,  though  it  is  not  directly  to  this 
point. 

Where  the  doubt  arises  on  the  construction  of  the  language,  the 
presumption  must  be  in  favor  of  the  assured,  since  the  language 
is  that  of  the  underwriter.  Besides  this,  the  case  does  not  seem  to 
admit  of  any  presumption. 

Under  a  policy  upon  mules,  asses,  and  oxen,  "  free  from  mortal- 
ity and  jettison,"  it  was  said  that  "the  word  mortality,  in  its  ordi- 
nary sense,  never  means  violent  death,"  and  accordingly  the  in- 
surers were  held  liable  for  the  loss  of  such  of.  the  animals  as  died 
in  consequence  of  injuries  received  by  the  rolling  of  the  ship  dur- 
ing a  storm.  Chief  Justice  Abbott  said  :  "Suppose  a  horse  were, 
by  the  motion  of  the  vessel  in  a  storm,  to  have  his  legs  broken, 


1  Ivounsljury  v.  Protection  Ins.  Co.,        2  Palmer   v.   Warren   Ins.    Co.,  1 
8  Conn.  11.  459.  Story's  R.  360.     See  also  Keyser  v. 

Scott,  4  Taunt.  660. 


I 

SECT.  XVII.]  RISKS   IN   BOTTOMRY  INTEREST.  719 

but  arrive  alive  ;  the  underwriters  would  be  answerable  for  that 
loss."  1 

1164.  There  are  divers  risks  not  assumed  by  the  underwriter 
besides  those  ivhich  are  made  the  subjects  of-  direct  exceptions,  as 
we  have  seen  under  the  heads  of  implied  and  express  warranties, 
conditions  and  stipulations. 

SECTION    XVII.       RISKS    IN    BOTTOMRY    INTEREST. 

1165.  The  risks  and  losses  to  which  the  lender  on  bottomry  on 
ship  and  freight,  or  at  respondentia  on  cargo,  is  liable,  depend 
upon  the  particular  stipulations  of  the  bond. 

1166.  Different  forms  of  bottomry  and  respondentia  bonds  have 
been  in  use.  Formerly  the  condition  seems  to  have  sometimes 
been,  that  the  bond  should  become  absolute  for  the  whole  loan 
and  interest,  in  case  of  the  ship  or  goods  subsisting  in  specie  at 
the  termination  of  the  risk.^  But  according  to  the  form  no  less 
ancient  and  now  generally  in  use,  certain  risks  to  be  assumed  by 
the  lender,  are  definitely  specified  in  the  bond,  or  by  reference  to 
some  form  of  policy  of  insurance.^  The  risk  may  be  for  a  voyage 
or  a  certain  period  of  time."^  It  is  essential  to  the  validity  of  the 
stipulation  for  maritime  interest,  that  the  lender  should  assume 
some  risks. 

In  maritine  loans  as  in  insurance,  fraud  by  a  party  will  deprive 
him  of  the  benefit  of  ihe  contract. 

1167.  The  risks  understood  to  be  assumed  by  ihe  lender,  under 

1  Lawrence  v.  Aberdeen,  5  B.  &  A.  lender  was  not  liable  for  contribution 
107.  in  general  average.     Title  9,  art.  10; 

2  1  Magens,  393,  cas.  34;  3  Burr.  2  Magens,  225,  No.  931.  By  the 
1394;  1  W.  Bl.  396;  1  Beawes,  332,  French  law  he  is  liable  for  general 
tit.  Bottomry,  &c. ;  2  Magens,  56,  No.  and  particular  average  and  entitled 
133;  Park,  Ins.  337 ;  Marsh.  Ins.  82 ;  to  salvage.  Le  Guidon,  c.  19,  art.  5  ; 
Thompson  v.  Royal  Exch.  Ass.  Co.,  1  Code  de  Commerce,  art.  141 ;  and  see 
M.  &  S.  30 ;  Joyce  v.  Williamson,  3  Boulay  Paty,  Droit  Com.,  torn.  3,  p. 
Doug.  164 ;  Walpole  v.  Ewer,  Marsh.  168 ;  Weskett,  art.  Bottomry,  n.  23, 
Ins.,  2d  ed.  672 ;  and  per  Kent,  J.,  2  27  ;  2  Magens,  52,  No.  132  ;  Gibson  v. 
Johns.  Cas.  252.  Philadelphia  Ins.  Co.,  1  Binn.  405. 

3  By  the  ordinance  of  Hamburg  the        4  The  Draco,  2  Sumner,  157. 


720 


RISKS   COVERED. 


[chap.  XIII. 


the  forms  of  bottomry  and  respondentia  bonds  in  common   use, 
are  perils  of  the  seas  including  captures  and  piracy.^ 

1168.  The  lender,  who  is  in  effect  the  insurer  on  the  ship  and 
freight,  or  on  the  cargo,  does  not  take  the  risk  of  loss  by  the  mis- 
conduct of  the  borrower,^  or  his  agents.^  The  risk  of  barratry  is 
not  taken  by  him,  unless  it  is  so  expressed,  any  more  than  in  a 
policy  of  insurance.'*  The  French  ordinances  exonerate  the 
lender  from  loss  arising  from  the  qualities  or  defects  of  the  sub- 
jects hypothecated  ;  ^  and  ordinary  wear  and  tear,  breakage  and 
leakage.*'  And  contraband.^  But  nothing  prevents  parties  from 
expressly  stipulating  that  he  shall  assume  these  or  such  other  risks 
which  can  lawfully  be  insured  against.^ 

1169.  Tlie  bond  should  not  only  specify  the  perils  assumed  by 
the  lender,  but  also  the  extent  of  his  liability  in  adjusting  losses 
by  such  perils,  by  reference  to  a  policy  of  insurance  or  otherwise. 

1 170.  The  property  saved  in  case  of  wreck  or  other  disaster, 
continues  to  be  subject  to  the  hypothecation  ;  ^  but  if  the  loss  is  by 
the  perils  assumed  by  the  lender,  the  borrower  becomes  discharged 
from  all  liability  on  his  bond  excepting  to  the  amount  saved. ^'^ 
Nothinii  short  of  a  total  loss  will  discharge  the  borrower.^i 


1  The  lender  in  hypothecation  at 
Athens  took  the  risk  of  capture  and 
jettison.  Boeckh.  Public  Economy 
of  Athens,  by  Lewis.  London,  1842, 
c.  23,  p.  139. 

2  Roc.  de  Nav.,  n.  51 ;  Dig.  de  Naut. 
Foen.;  Pope  v.  Nickerson,  3  Story's  R. 
4G6  ;  Boulay  Paty,  Droit  Cora.,  torn.  3, 
p.  4,  et  seq.  and  173,  ed.  1822;  Eme- 
rigon,  torn.  2,  p.  510;  Code  de  Com- 
merce, a.  32G. 

3  Marsh.  75G,  book  2,  c.  5  ;  Dig.  lib. 
22,  torn.  2,  De  Naut.  Fu;n.  1.  3 ;  Wil- 
mer  v.  The  Smilax,  1  Petcrs's  Ad.  K. 
205,  n. 

4  Boulay  Paty,  torn.  3,  p.  IGl,  175. 

5  Ordinance  Louis  XI V.  tit.  Cont.  a 
Grosse  Avent.,  a.  12;  Code  de  Com- 
merce, 1.  2,  tit.  4,  a.  137.    See  also  Le 


Guidon,  c.  5,  a.  8 ;  Boulay  Paty,  Droit 
Com.,  tom.  3,  p.  171,  ed.  1822;  Eme- 
rigon,  tom.  2,  p.  509  ;  Pothier,  Ins.,  n. 
34 ;  Valin,  Com.  Contrat  a  la  Grosse, 
a.  12. 

6  Boulay  Paty,  Droit  Com.,  tom.  3, 
p.  172. 

7  Boulay  Paty,  Droit  Com.,  tom.  3, 
p.  175. 

8  2  Emerigon,  510;  Des  Cont.  h,  la 
Grosse,  c.  7,  s.  2. 

9  1  Magcns,  24,  s.  24 ;  Appleton  v. 
Crowningshield,  3  Mass.  R.  443  ;  Wil- 
mer  v.  The  Smilax,  Peters's  Ad.  R. 
295,  n.;  2  Valin,  12,  tit.  Des  Cont.  b, 
(jrosse,  a.  18;  Code  de  Commerce, 
1.  2,  tit.  9,  n.  142. 

1"  IMagens,  62,  c.  5. 

11  Marsh.  Ins.,  b.  2,  c.  5. 


SECT.  XVIL]  risks   IN   BOTTOMRY  INTEREST.  721 

1171.  The  master  cannot  impose  an  absolute  liability  upon  his 
owners  or  shippers  by  hypothecation,  he  can  only  give  a  lien  upon 
the  hypothecated  subject,  and  its  proceeds,  and  the  owner  is  bound  by 
his  acts  only  so  far  as  the  subject  or  salvage  comes  into  his  hands. ^ 

1172.  It  is  of  importance  that  the  parties  in  hypothecation 
should  stipulate  expressly  what  risks  the  lender  is  to  assume. 

Where  an  hypothecation  is  made  by  the  owner  at  the  home  port, 
the  more  usual  practice  is  to  refer  to  some  particular  form  of  policy 
of  the  same  port  in  specifying  the  risks  to  be  assumed  by  the 
lender,  which  greatly  facilitates  the  adjustment  of  claims  under 
the  bond,  the  rights  and  liabilities  of  the  parties  to  a  policy  being 
more  satisfactorily  settled  than  under  a  bond  of  hypothecation  in 
which  the  risks  specified  or  the  stipulations  as  to  loss  are  dif- 
ferent from  those  in  a  policy  of  insurance.  Hypothecations  are, 
however,  most  frequently  made  by  the  master  in  foreign  ports  for 
the  purpose  of  raising  funds  for  repairing  and  refitting,  under  cir- 
cumstances in  which  he  cannot  prescribe  the  terms  of  the  loan. 
As  the  bond  only  gives  a  lien  on  the  hypothecated  subject  and 
binds  him  personally  as  far  as  the  stipulations  go,  and  not  his 
owners,  excepting  to  the  extent  of  the  llen,^  he  is,  so  far  as  personal 
liability  is  concerned,  a  principal,  and  this  will  distinguish  the  case 
in  respect  to  loss  by  his  own  negligence  from  that  of  an  insurance 
by  the  owner. 

1173.  An  insurance  in  favor  of  a  lender  in  hypothecation  may 
be  made  against  all  risks  whatsoever,  which  can  be  legally  insured 
against,  and  is  not  necessarily  limited  to  the  risks  assumed  by  him. 

This  follows  from  the  doctrine  that  a  mortgagee  has  an  insurable 
interest  in  the  mortgaged  subject  to  its  full  value,  for  a  bottomry 
is  in  effect  a  mortgage  of  the  ship  or  goods  in  respect  to  all  the 
risks  except  those  assumed  by  the  lender.  Suppose  the  lender  to 
assume  only  the  risk  of  capture,  he  has  the  same  interest  in  re- 
spect to  ordinary  perils  of  the  seas  as  a  mortgagee  would  have,  for 
if  the  vessel  is  not  captured  he  has  a  lien  upon  it  to  the  amount 


•  See  supra,  No.  302,  303 ;  and  in-        2  Rucker  v.  Conyngham,  1  Peters's 
ira.  No.  1537,  1561, 1566, 1569, 1583.     Ad.  R.  295. 
VOL.    I.  61 


722 


RISKS   COVEEED. 


[chap.  xni. 


of  his  loan,  and  marine  interest,  of  which  he  cannot  avail  himself 
if  it  is  lost  by  shipwreck.^ 

1174.  A  bottomry  loan  being  on  condition  that  the  bond 
should  be  void  if  the  ship  "  should  be  taken  by  the  enemy, '^  the 
ship  was  taken,  and  afterwards  retaken,  and  repaired,  and  subse- 
quently completed  the  voyage ;  but  its  value,  on  arrival  at  New 
York,  was  not  sufficient  to  answer  the  bond.  Lord  Mansfield : 
"  We  are  all  of  opinion,  that  the  '  taking  of  the  enemy '  contemplated, 
does  not  mean  a  mere  temporary  taking.  It  must  be  such  a  tak- 
ing as  constitutes  the  loss  of  the  ship,  and  which  would  amount, 
between  the  insurer  and  insured,  to  a  total  loss."  It  was  accord- 
ingly held  not  to  be  within  the  risks  assumed  by  the  lender.^ 

1175.  It  has  been  the  practice  in  the  United  States,  to  specify 
the  risks  of  the  lender  more  particularly  than  they  were  specified 
in  the  old  form  of  the  bottomry  and  respondentia  bonds,  and  it  is 
usual  for  the  lender  to  assume  the  risk  of  average  and  to  be  enti- 
tled to  the  benefit  of  salvage. 

Under  a  respondentia  bond  with  the  condition  that  if  "an  utter 
loss  of  the  ship  should  happen,  and  the  borrower  should  within 
three  months  after  account  for  and  pay  over  a  proportional  ave- 
rage on  the  goods  not  lost,  the  bond  should  be  void,"  the  ship  was 
so  damaged  as  to  be  unnavigable,  and  the  goods  being  transshipped 
arrived  and  came  to  the  hands  of  the  borrower.  The  bond  was 
held  thereby  to  become  absolute.^ 


1  The  above  proposition  seems  to 
be  negatived  by  a  judgment  of  Lord 
Ellenborough  and  his  associates, 
Thompson  v.  Royal  Exch.  Ass.  Co., 
1  M.  &  S.  30 ;  in  which  it  is  held  that 
the  lender  is  not  entitled  to  recover 
under  a  policy  upon  a  bottomry  inte- 
rest, so  long  as  the  ship  exists  in  spe- 
cie, though  so  damaged  by  the  perils 
assumed  by  the  lender  that  it  is  Avholly 
worthless  as  a  ship.  Tiic  liability  of 
the  insurers  was,  however,  presented 


by  counsel  and  considered  by  the 
court  as  being  merely  the  alternative 
to  that  of  the  borrower,  it  being  as- 
sumed that  if  the  borrower  was  liable 
for  the  loan,  the  underwriters  were 
not  liable  for  the  loss,  but  the  reason 
for  this  assumption  is  not  given.  The 
case  seems  to  have  been  properly  a 
question  of  salvage. 

2  Joyce  V.  Williamson,  3  Doug.  164. 

3  Ins.  Co.  of  Penn.  v.  Duval,  8  Serg. 
&  11.138. 


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UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  850  796    4 


